Boeing: The NLRB Decision That Keeps On Giving

Sherman & Howard L.L.C.

Sherman & Howard L.L.C.

On December 10, 2020, a divided National Labor Relations Board (NLRB or Board) reversed an administrative law judge’s (ALJ) finding that an employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining certain provisions in its Associate Guidebook. BMW Manufacturing Co., 370 N.L.R.B. No. 56 (Dec. 10, 2020). The employer’s Guidebook contains a Standards of Conduct section that included rules: 1) requiring employees to “[d]emonstrate respect for the Company” and “[n]ot engage in behavior that reflects negatively on the Company”; 2) instructing employees to “[n]ot use threatening or offensive language”; 3) prohibiting use of “personal recording devices…[and][unapproved] use [of] business recording devices within BMW MC facilities”; and 4) requiring that any information the employer had not released to the general public must be treated as confidential. The Board concluded that all of these rules were lawful.

In finding the rules regarding employees “attitude towards [the] company” were unlawful, the ALJ relied on precedent decided under Lutheran Heritage Village-Livonia. However, the ALJ findings were decided prior the Board’s decision in Boeing Co., 365 NLRB No. 154 (2017), where the Board overruled the “reasonably construe” prong of Lutheran Heritage. Instead, the Board determined that it would balance “the nature and extent of the potential impact on NLRA rights and (ii) legitimate justifications associated with the rule.” Id. at slip op. at 3. In balancing the two factors, the Board found the justifications for the employer’s facially neutral guidebook provisions were “self-evident” and dismissed the General Counsel’s allegations.

The Board also overturned the ALJ’s findings in regard to the civility provision, no-recording provision, and the confidentiality provisions. The Board found the civility provision lawful because it “fall[s] squarely into the category of lawful, commonsense, facially neutral rules that require employees to foster ‘harmonious interactions and relationships’ in the workplace and adhere to basic standards of civility.” The Board similarly dismissed the allegation as to the no-recording provision because, based on Boeing, it is a lawful Category 1(b) rule and the employer’s legitimate interest for the no-recording rule far outweighed the adverse impact on employees’ Section 7 rights. Finally, the Board found the employer’s rule that any information it had not released to the public must be treated as confidential lawful based on its prior decision in Argos USA LLC. The Board highlighted that the policy did not refer to employees’ personal and financial information, contact information, or other terms and conditions of employment, and thus, a reasonable employee would understand that the rule referred to “confidential business information.”

BMW Manufacturing is representative of the current Board’s permissive attitude toward reasonable employer rules.  Employers should stay tuned, however, because the new NLRB is likely to turn back the clock on the Boeing case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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