As we reported last December, the NLRB, in The Boeing Company, 365 NLRB No. 154 (2017), reversed its workplace rule standard under Lutheran Heritage. Specifically, instead of assessing whether an employee could “reasonably construe” a workplace rule as barring the exercise of rights under the NLRA, the new test will evaluate the nature and extent of the potential impact on NLRA rights and the legitimate justifications associated with the rule. The results of the new balancing test will place the rule in one of three categories: Category 1 (lawful work rules), Category 2 (work rules that warrant individualized scrutiny in each case), or Category 3 (unlawful work rules).
On December 14, 2017, in a 3-2 decision along party lines, the National Labor Relations Board (the “Board”) issued a decision in The Boeing Company, 365 NLRB No. 154 (2017) case. This is a significant and long-awaited victory for employers grappling with unfair labor practice charges stemming from facially neutral workplace rules and signals the Board’s intent to retreat from regulating non-union activity. Specifically, Boeing rescinds the onerous workplace rule standard in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) in favor of a new, more rational test.