New NLRB memo talks permissible vs. impermissible handbook rules in light of Boeing In the aftermath of its December 2017 The Boeing Company decision, the National Labor Relations Board has issued new guidance on handbook rules. The June 7 General Counsel memorandum provides general guidance for Regions about the placement of various types of rules into the three categories set out in Boeing, as well as the Section 7 interests, business justifications, and other considerations that Regions should take into account in arguing to the Board that specific Category 2 rules are unlawful.
Rules categories. The memo provides instruction as to each of the three categories of rules set forth in Boeing:
Category 1: Rules that are generally lawful to maintain
Category 2: Rules warranting individualized scrutiny
Category 3: Rules that are unlawful to maintain
Category 1: The types of rules in this category are generally lawful, either because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of rights guaranteed by the National Labor Relations Act, or because the potential adverse impact on protected rights is “outweighed by the business justifications” associated with the rule, according to the memo. Charge allegations alleging that rules in this category are facially unlawful should be dismissed, absent withdrawal.
However, if a Region believes that special circumstances render a normally lawful rule under Category 1 to be unlawful, for example, due to a unique industrial setting, the history of the rule’s application, or direct evidence of employee chill, the Region should submit the case to the Division of Advice. Notably, merely maintaining a facially lawful rule does not determine whether the rule was applied lawfully.
The memo provides examples of Category 1 rules that in include several general types and specific examples of what is deemed acceptable. The following types of rules fall into this category:
Civility rules
No-photography and no-recording rules
Rules against insubordination
Non-cooperation, or on-the-job conduct that adversely affects operations rules
Disruptive behavior rules
Rules protecting confidential, proprietary, and customer information or documents
Rules against defamation or misrepresentation
Rules against using employer logos or intellectual property
Rules requiring authorization to speak for the company
Rules banning disloyalty, nepotism, or self-enrichment
Category 2 rule. The rules in this category are not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications. In the absence of any Board jurisprudence applying Boeing to a Category 2 rule, Regions should submit all Category 2 rules to Advice.
Examples of possible Category 2 rules include:
Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union.
Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information, or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions).
Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees).
Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark).
Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf).
Rules banning off-duty conduct that might harm the...