An Analysis of the NLRB General Counsel's Memorandum
On June 6, 2018, the National Labor Relations Board’s (“NLRB”) General Counsel (“GC”) released a memorandum providing guidance on the NLRB’s recent decision in The Boeing Company, 365 NLRB No. 154. When responding to unfair practice charges involving employer handbook rules, the memo provides employers with an easy-to-follow roadmap to evaluate the legality of employer handbook language and rules.
In an effort to limit ambiguity, the NLRB overruled Lutheran Heritage’s reasonably construe standard and its presumption of prohibiting any rule that could be interpreted to violate section 7, in favor of a test that prohibit rules that would violate section 7 activity.
The Boeing decision introduces a balancing test which compares the interests of the employer to the relative burden on rights guaranteed by the National Labor Relations Act (“NLRA”). In interpreting this employer-friendly decision, the GC introduced three categories to analyze employer policies:
Rules that are Lawful to Maintain
Takeaway: Generally, challenges by the charging party based on the above rules should be dismissed by the Regional agents of the NLRB, unless withdrawn by the charging party.
Rules that warrant Individual Scrutiny
Takeaway: Generally, challenges by the charging party based on the above rules should be evaluated on a case-by-case basis. These rules are not obviously lawful or unlawful, and challenges must be evaluated in light of the balancing test.2
Rules that are Unlawful to Maintain
Takeaway: Regions should issue a complaint against these rules, absent a settlement for the charging party. These rules are generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights outweigh justifications associated with the rule.
For more information about how the new guidance may impact your business, or for assistance with revising your handbook language, contact Thomas Godar or another member of Husch Blackwell’s Labor & Employment team.
This article was co-authored by Skye Parr, a summer associate in our Madison, Wisconsin office.