On June 6, 2018, the NLRB’s General Counsel released a guidance memo providing insight into practical application of the Board’s recent decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).
Previously, the Board used Boeing to provide a new standard for evaluating the legality of employee handbook provisions. The new standard examines the particular handbook provision in question, balancing the nature and extent of the potential impact of the provision on employees’ NLRA rights against the employer’s legitimate justifications for the provision. The results of this balancing analysis are used to place the particular provision into one of three categories of provisions identified by the Board in Boeing. For additional details on the NLRB handbook standards adopted in December 2017, click here.
The recent General Counsel’s guidance memo contains general guidance for regional offices on the placement of rules into the three categories identified by the Board in Boeing as well as the considerations regional offices should take into account when arguing that certain rules are unlawful.
For employers, there are three notable takeaways from the General Counsel’s guidance memo, which can be accessed here.
The General Counsel instructs that “[r]egions 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 General Counsel makes clear that employers cannot use facially lawful rules to prohibit protected concerted activity or to discipline employees engaged in protected concerted activity.
Most importantly, the General Counsel summarizes each of the three categories of rules discussed by the Board in Boeing, provides useful examples of rules falling within each category, and offers a brief analysis of the balancing test as applied to those examples.
The new guidance confirms for employers the approach that the NLRB will take in the wake of Boeing when interpreting generalized handbook provisions or ambiguities in handbook provisions. Prudent employers should carefully review this guidance memo and consider having their handbooks reviewed in light of the various examples offered in the memo. Additionally, the memo should serve as a reminder to employers to take care in how they apply facially lawful rules.