The National Labor Relations Board (NLRB) is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions. Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to attempt to form, join, assist, be fairly represented by, or refuse to be a part of a union in their workplace. They may also engage in concerted activity to improve workplace conditions either individually or as part of a group. Employers who interfere with, restrain, coerce or discriminate against employees for exercising their Section 7 rights may be accused of unfair labor practices as outlined in Section 8 of the NLRA.
In a recent decision, The Boeing Company, the NLRB put an end to the standard established over a decade ago in Lutheran Heritage Village–Livonia. In Lutheran Heritage, the NLRB held that an employer violates the NLRA when it maintains a workplace rule that “reasonably tends to chill” employees in their exercise of Section 7 rights. The Board stated that if a rule does not explicitly restrict activities protected by Section 7, then it will be deemed a violation of the NLRA if: employees would reasonably construe the language of the rule to prohibit Section 7 activity, the rule was promulgated in response to union activity or the rule was applied to restrict the exercise of Section 7 rights.
Based on the precedent set in Lutheran Heritage, many facially neutral workplace rules in subsequent cases were often found to violate employees’ Section 7 rights. Some of those rules included a policy banning profanity and abuse among co-workers and policies requiring employees to behave in a professional manner or to work harmoniously. Employers’ rationale for implementing the workplace rules was not taken into consideration; to prevail, employees simply had to show that the language of the rule could be construed as violating their right to engage in concerted activity.
In The Boeing Company, Boeing, a company that designs and manufactures military and commercial aircraft, instituted a blanket ban of camera-enabled devices on its premises to protect highly-sensitive information and to avoid security and safety risks. The Administrative Law Judge found that the policy reasonably tended to chill employees’ exercise of their Section 7 rights. However, the NLRB disagreed and in doing so, overturned the standard established in Lutheran Heritage.
The NLRB found the camera ban rule to be lawful and stated that employers’ interests in maintaining certain workplace rules should be taken into consideration, according to both the NLRA and Supreme Court precedent. The Board critiqued Lutheran Heritage, stating that it failed to take into account real life facts and circumstances that may necessitate the implementation of restrictive workplace rules. A more balanced standard is now in effect – one that allows for consideration of both employees’ interpretation of work policies and employers’ interest in instituting the policy. When evaluating a facially neutral workplace rule, the NLRB will now consider not only its potential impact on NLRA rights, but also any legitimate justifications for the rule.