On December 14, 2017, the NLRB reversed the portion of an Administrative Law Judge’s 2014 decision that barred The Boeing Company’s rule prohibiting the use of cell phones to capture images or take video on company grounds.  In doing so, the NLRB overruled the standard set forth in the 2004 Lutheran Heritage decision , namely that a workplace rule is unlawful even if it does not explicitly restrict activity protected by Section 7 of the NLRA ( i.e. , employees’ right to self-organize), if “employees would reasonably construe the language to prohibit Section 7 activity.”
As noted in the Boeing decision, Lutheran Heritage had previously been applied to bar a host of workplace rules, including rules that banned “false, vicious, profane or malicious statements toward or concerning the … [employer] or any of its employees,” “unwillingness to work harmoniously with other employees,” and “negative conversations about associates and/or managers.”
The NLRB’s reasons for rejecting the Lutheran Heritage “reasonably construe” test included that it fails to take into account legitimate justifications for policies, rules, and handbook provisions, and that it has yielded unpredictable results, which has created uncertainty and litigation for employees, unions and employers.
In Boeing , the NLRB adopted a new two-part test when evaluating a facially neutral policy, rule, or handbook provision that could potentially interfere with the exercise of Section 7 rights. Under that standard, the NLRB will evaluate: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”
Applying the new standard, the NLRB focused on Boeing’s justifications for its no-camera rule, including that its facilities are targets for espionage by competitors, foreign governments and supporters of international terrorism, and held that the justifications far outweighed the limited adverse effect on the exercise of Section 7 rights.