NLRB reverses course on workplace civility rules

As previously reported on this blog, with a now Republican majority on its Board, the NLRB has begun reversing course on a number of issues. On December 14, 2017, the Board overruled its 2004 precedent in Lutheran Heritage Village-Livonia, which had suggested that workplace civility rules violated the NLRB. This case confirms that the National Labor Relations Act does not guaranty to workers the right to be uncivil.

In this case, Boeing had a rule that prohibited the use of cameras, including in cell phones, on company property. Boeing asserted the reasons for its policy included the protection of highly sensitive, classified information, as well as the prevention of terrorist activities.

Under Lutheran Heritage, the Board had analyzed such policies by asking whether an employee would “reasonably construe” them as chilling the employee’s right to engage in protected concerted activity under Section 7 of the NLRA. In this case, the Board held that the “reasonably construe” standard was too narrow, “single-minded,” and did not take “into account any legitimate justifications” for the policy. The Board noted the “reasonably construe” standard had been applied “to invalidate facially neutral work rules solely because they were ambiguous in some respect” (emphasis in original).

Instead the Board will first ask if the policy is “facially neutral” and, if so, whether “when reasonably interpreted,” it “would potentially interfere” with Section 7 rights.

The Board explained this new approach will produce three categories of rules:

  • “Category 1” rules that are lawful. These include Boeing’s no-camera rule, as well as “harmonious interactions and relationships” rules and general “civility” rules.
  • “Category 2” rules whose lawfulness will depend on the circumstances.
  • “Category 3” rules that are  unlawful because their constraint on Section 7 rights “is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that prohibits employees from discussing wages or benefits with one another.”

Source: The Boeing Co., 365 NLRB No. 154 (12/14/17).

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