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New NLRB memo talks permissible vs. impermissible handbook rules in light of Boeing
\nIn the aftermath of its December 2017\xa0The\xa0Boeing Company\xa0decision, 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\xa0Boeing, 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.
\nRules categories.\xa0The memo provides instruction as to each of the three categories of rules set forth in\xa0Boeing:
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\nCategory 1: Rules that are generally lawful to maintain
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\nCategory 2: Rules warranting individualized scrutiny
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\nCategory 3: Rules that are unlawful to maintain
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\nCategory 1:\xa0The 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.
\nHowever, 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\u2019s 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.
\nThe 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:
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\nCivility rules
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\nNo-photography and no-recording rules
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\nRules against insubordination
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\nNon-cooperation, or on-the-job conduct that adversely affects operations rules
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\nDisruptive behavior rules
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\nRules protecting confidential, proprietary, and customer information or documents
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\nRules against defamation or misrepresentation
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\nRules against using employer logos or intellectual property
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\nRules requiring authorization to speak for the company
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\nRules banning disloyalty, nepotism, or self-enrichment
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\nCategory 2 rule.\xa0The 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\xa0Boeing\xa0to a Category 2 rule, Regions should submit all Category 2 rules to Advice.
\nExamples of possible Category 2 rules include:
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\nBroad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union.
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\nConfidentiality 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).
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\nRules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees).
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