“I’ll be back,” as famously stated by Arnold Schwarzenegger in “The Terminator,” likely applies to the National Labor Relations Board’s (NLRB) prior, less-employer-friendly test for examining workplace policies and procedures. Earlier this month, the NLRB invited public briefing on whether it should adopt a new legal standard when evaluating the lawfulness of employer rules.
In 2017, the Trump NLRB overruled the prior test for analyzing work rules under federal labor law and established a new balancing-of-interests framework. Boeing Co., 365 NLRB No. 154 (2017). Under the current Boeing standard and cases applying it, employers could have faith that the board would find common rules, policies and procedures lawful.
With the invitation of public briefing, the board is signaling its return to the prior and much more ambiguous standard, which focuses on whether “employees would reasonably construe” a commonplace rule as prohibiting lawful activity. This test, frequently referred to as the “reasonably construe” standard, generated a largely inconsistent body of NLRB precedents. It endorsed a broad and single-minded analysis of the National Labor Relations Act (NLRA) solely from the perspective of an employee, without considering any legitimate business justifications associated with the rule.
As aptly described by the two Republican board members who dissented in the decision to revisit the standard, the NLRB is on its way to becoming the “the federal employee-handbook police,” noting that the prior standard “found rules violative of the Act if there was any way they might be read to interfere with the exercise of employees’ Section 7 rights.” In practice, few rules withstand scrutiny under this test.
Moving forward, employers – union and nonunion alike – should be prepared to revise their workplace rules, policies and procedures – again. Because odds are the present, pro-union NLRB will be saying to the Boeing test, in the words of Schwarzenegger in “Terminator 2: Judgment Day,” “Hasta la vista, baby.”
Takeaway: The NLRB will likely change its current approach to analyzing workplace rules under the NLRA, leading to much less clarity in determining what is a “lawful” rule. Stay tuned here.