On June 6, 2018, the National Labor Relations Board General Counsel issued a Memorandum to its field offices with guidance on how to interpret whether employers’ workplace rules violate workers’ labor rights.
The Memorandum directs the application of the NLRB's decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), where the Board reassessed its standard for when the mere maintenance of a work rule violates Section 8(a)(1) of the Act. The Board established a new standard that focused on the balance between the rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline and productivity in their workplace. The Board in Boeing not only added a balancing test, but it also significantly altered its jurisprudence on the reasonable interpretation of handbook rules.
The Memorandum contains general guidance for Regions regarding the placement of various types of rules into the three categories set out in Boeing, and regarding the Section 7 interests, business justifications, and other considerations that Regions should take into account in arguing to the Board that specific Category 2 rules are unlawful.
Regions should now note that ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.
The link to the Memorandum can be found here.