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In The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, Case Nos. 19-CA-090932, 19-CA-090948, and 19-CA095926, the National Labor Relations Board overturned the standard set forth in Lutheran Heritage Village-Livonia, 323 NLRB 646 (2004), for determining whether facially neutral policies, rules, and handbook provisions are unlawful. By way of background, the Lutheran Heritage standard for evaluating workplace rules called for the Board to first evaluate whether the rule explicitly restricts activities protected by Section 7 of the NLRA. If the rule explicitly restricted Section 7 activities, the rule would then be deemed unlawful. If the rule did not explicitly restrict Section 7 activities, the Board would then evaluate whether (i) employees would reasonably construe the language to prohibit Section 7 activities; (ii) the rule was promulgated in response to union activity; or (iii) the rule has been applied to restrict Section 7 activity. In the thirteen years since Lutheran Heritage, much ink has been spilled on the legality of various workplace rules, often leaving employers left guessing whether they were running afoul of the NLRA.

In Boeing Co., the Board established a standard and framework intended to provide employers with more certainty as to the legality of their workplace rules. At issue in Boeing Co. was Boeing's "no-camera" rule, which restricted the use of devices with camera capability, such as a cell phone, on its property. While Boeing completely prohibited employee camera device use in certain classified areas, employees could use camera devices in other areas, as long as the employee had a valid business need and a pre-approved permit. Of note, the policy included a savings clause, which provided that nothing in the policy should be construed as restricting Section 7 activities. In contrast, Boeing did not similarly restrict visitors to the facility from using their camera devices. Despite the existence of the savings clause and applying the Lutheran Heritage standard, Administrative Law Judge Etchingham found the "no-camera" rule to be unlawful, relying in large part on the contrast between Boeing's approach to visitor camera device use and employee camera device use.

In a 3-2 decision, the Board concluded that Judge Etchingham's decision evidenced the flaws inherent in the Lutheran Heritage standard, including the inability to take into account an employer's legitimate reasons for the workplace rule. Accordingly, the Board set forth a new standard for evaluating the legality of an employer's rules. Specifically, when asked to determine whether a facially neutral rule could interfere with Section 7 rights, the Board is to evaluate "(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule." Applying this standard to the "no-camera" rule at issue, the Board concluded that the rule was not unlawful but, rather, was essential to Boeing's security protocols, noting that it is a "sobering reminder that we live in a dangerous world, one in which many individuals – foreign and domestic – may inflict great harm on the United States and its citizens."

Furthermore, with the Board's application of this standard going forward, it will also establish a framework, creating three categories of rules. Category 1 includes those rules that the Board has deemed lawful to maintain because they do not interfere with Section 7 rights, or the potential impact on Section 7 rights is outweighed by the legitimate justifications for the rule. Category 2 includes rules that require individualized scrutiny to determine whether the justifications for the rule outweigh the potential impact on Section 7 rights. Category 3 includes rules that are unlawful, because they prohibit Section 7 activities, or the justification for the rule does not outweigh the potential impact on Section 7 activities. Here the Board found that "no-camera" rules, in general, will fall into Category 1.

Of note, while Boeing Co. sets forth a standard and framework to determine whether an employer's maintenance of a workplace rule is lawful, the Board is not precluded from finding that the use of a workplace rule to discipline an employee who engaged in Section 7 activity is unlawful.

With the implementation of this new standard, the Board aims to provide employers with more certainty as to the maintenance of workplace rules. We will continue to monitor the Board's application of this standard.