The NLRB Considers the Employer’s Perspective!

As part of this three-part series, the Wiley Law Office will discuss a major change that took place recently at the National Labor Relations Board in how it evaluates employer work rules and whether they “chill” employee speech in regard to rights protected by the National Labor Relations Act.  The Board’s recent decision in The Boeing Company, 365 NLRB No. 154 (December 14, 2017) led to the General Counsel for the Board issuing new guidance for employers on work rules.  This guidance provides some needed breathing room for employers in putting forth work rules that will not get them in trouble with their employee groups.

Part I will discuss previous decisions and how they affected employers; Part II will analyze and evaluate the Board’s decision in The Boeing Company; and Part III will discuss the NLRB General Counsel’s guidance on how judges should analyze employer work rules going forward, with specific examples.

Protection of Concerted Activity

Section 7 of the NLRA protects the right of employees to “self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Section 8(a)1 of the Act prohibits employers from interfering with those rights.  In the recent past, the Board has grown more protective of employee speech, even that which, in the eyes of many employers, does nothing but deteriorate the relationships between the employer and the employee.

In Minnesota, Minn. Stat. §179A.13, subd. 2(1) prohibits public employers from “interfering, restraining, or coercing employees in the exercise of the rights guaranteed” by PELRA.  And while there is not much by way of case law for employers to understand what that means, the general consensus amongst employers is that, if and when the Public Employee Relations Board is up and running, it will utilize the decisions of the National Labor Relations Board to decide complaints brought by employee groups.

Pre-Boeing Law

In evaluating whether certain work rules regulating employee conduct were lawful, the NLRB previously utilized the standard set by Layfayette Park Hotel, 326 NLRB 824 (1998), which held if the Board found an employer’s rule to explicitly restrict rights protected by Section 7 of the NLRA, it would be found unlawful.  Once that determination is made, the Board stated that “the appropriate inquiry is whether the rules would reasonably chill employees in the exercise of their Section 7 rights,” and in making that determination, the Board was required to “give the rule a reasonable reading…refrain from reading particular phrases in isolation, and…not presume improper interference with employee rights.”  Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004).

It was the first prong of the test, however, that led to many facially-neutral work rules being found in violation of the NLRA, and it was that prong that the administrative law judge in Boeing used to find a “No Cameras” policy unlawful.  In finding the ALJ’s decision to be not reflective of the intent of Section 8(a)1, the Board focused on how little attention the judge paid to the legitimate needs of the business to maintain confidentiality.

For analysis of the Board’s decision in Boeing, tune in next week for part II of the Wiley Law Office blog’s three-part discussion of the NLRB’s about-face on employer work rules related to employee misconduct.