On June 6, NLRB General Counsel Peter Robb, the NLRB’s chief prosecutor, issued a detailed, 20-page Memorandum to the NLRB Regional Offices entitled “Guidance on Handbook Rules Post-Boeing.” (As General Counsel, Robb decides which unfair labor practice charges filed in the various NLRB regional offices should be pursued. Through his memorandum, GC Robb has instructed the regional offices when charges involving the legality of employer work rules should be pursued.) In The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the NLRB established a new standard for evaluating employer rules that balances the potential impact of the rule on employees’ NLRA rights against the employer’s legitimate justification for the rule. The decision also sets forth three categories of work rules: (1) rules that are generally lawful to maintain; (2) rules that require case-by-case consideration to determine if they are lawful; and (3) rules that are unlawful. In the memorandum, he articulates the types of work rules that he believes generally will fall under each category.

As we previously reported, in, Boeing, the Trump Board overruled an earlier NLRB case, Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and adopted a new framework for deciding whether merely maintaining a facially-neutral work rule violates the National Labor Relations Act. Lutheran Heritage had set forth an analysis that, as applied, resulted in the Board finding many common-sense employer work rules unlawful. In Boeing, the NLRB established a new standard that balances the potential impact of the rule on employees’ NLRA rights against the employer’s legitimate justification for the rule and sets forth the three categories into which a work rule may fall.

Category 1 lawful rules include many rules that the NLRB likely previously would have found unlawful, such as those related to: (1) civility; (2) no-photography/no-recording; (3) insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; (4) disruptive behavior; (5) protecting confidential, proprietary, and customer information or documents; (6) prohibiting defamation or misrepresentation; (7) prohibiting use of employer logos and trademarks; (8) requiring authorization to speak for the company; and (9) banning disloyalty, nepotism, or self-enrichment.

Category 2 rules – those that warrant individualized scrutiny. GC Robb advised that “possible examples” of Category 2 rules include: (1) “Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment”; (2) “Confidentiality rules broadly encompassing ‘employer business’ or ‘employee information’ (as opposed to confidentiality rules regarding customer or proprietary information…)”; (3) “Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding the disparagement of employees…)”; (4) “Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark…)”; (5) “Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf…)”; (6) “Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work…”); and (7) “Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements…).”

Last, the GC’s examples of Category 3 unlawful rules include: (1) those that require confidentiality with respect to wages, benefits, or other working conditions and (2) those that prohibit joining outside organizations or voting on matters concerning employers.

It appears the General Counsel intends to apply The Boeing Company broadly. Please contact us if you have questions about your work rules.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.