by John E. Motylinski (Fall 2018)
On December 14, 2017, the National Labor Relations Board (“NLRB”) dramatically changed the way it handles complaints regarding workplace rules in its decision in The Boeing Company. Given that Illinois Courts and administrative agencies often look to the NLRB for guidance in interpreting the Illinois Educational Labor Relations Act, the impact of the Boeing decision will likely be felt by Illinois educators, as well.
Previously, the NLRB had adopted the view that a neutral work rule that does not explicitly restrict employees’ rights to engage in union or protected concerted activity could nevertheless be unlawful if employees would “reasonably construe” the rule to prevent them from exercising their rights under the National Labor Relations Act (“NLRA”). This decree’s reach was gradually expanded to shoot down certain benign-looking rules concerning confidentiality, employee interactions with third parties, employee use of logos and trademarks, and recording and photography in the workplace.
However, in its recent Boeing decision, the NLRB reversed course and implemented a new test governing the legality of workplace rules. In Boeing, the employer was an aerospace company that implemented a “no camera” policy, which prohibited the use of items, including cell phones and laptops, capable of capturing images without a permit. Boeing asserted this rule was necessary because it often performed classified work for the federal government, and information security was paramount.
A union representing one of Boeing’s bargaining units filed an unfair labor practice charge against Boeing. The charge alleged, in part, that the no-camera rule interfered with the employees’ ability to exercise their rights under the NLRA to form and participate in a union. The charge was initially sustained because, under the NLRB’s previous rule, employees would “reasonably construe” the no-camera rule to prevent them from exercising their rights to organize under the NLRA.
Upon reaching the full NLRB, however, the Board demolished the old regime and replaced it with a two-pronged test. Now, in evaluating whether a facially neutral policy would potentially interfere with the exercise of NLRA rights, the NLRB will weigh: (1) the nature and extent of the potential impact on NLRA rights, and (2) the legitimate justifications associated with the rule. Perhaps foreseeing that this test is not especially helpful to observers and employers, the NLRB explained its ruling by creating three categories of workplace rules:
Category 1 – Rules that are generally lawful to maintain: These rules are generally lawful, either because the rule does not prohibit or interfere with the exercise of rights guaranteed by the NRLA, or because the potential adverse impact on NLRA rights is outweighed by the business justifications associated with the rule. This category includes (1) civility rules governing conduct between fellow employees (e.g., a rule prohibiting “behavior that is rude, condescending or otherwise socially unacceptable”); (2) no photography and no recording rules; (3) rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; (4) disruptive behavior rules; (5) rules protecting confidential, proprietary, and customer information or documents; (6) rules against defamation or misrepresentation; (7) rules against using employer logos or intellectual property; (8) rules requiring authorization to speak for the company; and (9) rules banning disloyalty, nepotism, or self-enrichment. According to the NLRB’s General Counsel, unfair labor practice charges “alleging that rules in this category are facially unlawful should be dismissed.”
Category 2 – Rules warranting individualized scrutiny: Rules in this category must be closely analyzed by the NRLB and challenges to these types of rules will not automatically be dismissed. Further, these types of rules must be individually scrutinized to see whether they would prohibit or interfere with NLRA rights, and whether any adverse impact on NLRA-protected conduct is outweighed by legitimate business justifications. Such rules could include: (1) broad conflict of interest rules that are not tailored to fraud or self-enrichment; (2) excessively broad confidentiality rules that restrict the ability to talk about employee wages, terms of employment, or working conditions; (3) rules prohibiting disparagement or criticism of the employer (as opposed to other employees); (4) rules regulating the use of the employer’s name alone; (5) policies prohibiting employees from speaking to the media or third parties in their personal capacities; and (6) rules banning off-duty conduct that might harm the employer (as opposed to proscribing on-duty disruptive conduct).
Category 3 – Rules that are always unlawful: Rules in this category are per se unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. These include (but are not limited to) confidentiality rules that restrict talking about wages, benefits, or working conditions, and rules banning employees from joining a union or taking collective action.
Applying its new test, the Board found that Boeing’s rule fell under Category 1, as the Company’s business justifications—including national security—outweighed the potential impact on employees’ NLRA rights.
Taken as a whole, private sector employers have more leeway to maintain workplace rules that might tangentially implicate employee NLRA rights.
While it may take some time before the Boeing decision is fully implemented by the Illinois Educational Labor Relations Board, the Boeing decision is undoubtedly an indication that certain workplace rules will now withstand scrutiny where they perhaps could not before. Illinois school districts are encouraged to conduct a workplace rule review with their attorneys to determine if there is room for improvement in light of Boeing.