In the Boeing Company case (365 NLRB No. 154 (2017)), the National Labor Relations Board established a new system for interpreting Employer policies and whether or not they would have a negative impact on an Employer's ability to exercise their Section 7 rights under the National Labor Relations Act. Specifically in the Boeing Company case, the NLRB determined that the Employer's "no camera rule" was lawful because the Employer (Boeing) articulated sufficient justifications, including specific security protocols necessary to perform classified work for the United States Government that excepted the "no camera rule" of the Employer from the potential violation of Employee Section 7 rights. Unfortunately, many Employers have interpreted this NLRB ruling to be a "blanket coverage" protecting an Employer's policies vis-a-vis Section 7 rights. Unfortunately, that is not true.
The author is fairly certain that a vast number of the readers of this Article have either seen or unfortunately been involved in a case where a union has placed signage and the RAT at an employer's premise to force the employer to "cease doing business with or supplying another employer with raw materials (i.e., stone, sand, gravel, piping, etc.)" with which the union has a labor dispute. The Obama Labor Board (NLRB) has found this type of activity to be "Free Speech" protected by the First Amendment and exempt from the prohibitions of a "Secondary Boycott."
On June 6th newly appointed General Counsel to the National Labor Relations Board, Peter B. Robb, issued comprehensive new guidance on employee handbook provisions. The guidelines direct the Board's Regional Directors throughout the country to reverse course from years of decisions issued by the Board majority appointed by then President Obama. Under the Obama Board numerous workplace rules commonly found in employee handbooks, were declared unlawful. Specifically, a long line of NLRB decisions considered many standard provisions interfered with or restrained employees in exercising their right to engage in "concerted activities" protected by Section 7 of the National Labor Relations Act. The rationale used to justify such an extraordinary expansion of a labor law that has existed since 1947, was based on a hypothetical question: "could" employees interpret a given handbook provision to tamp down their right to strike, or to join together in protest of wages or other terms and conditions of employment? All too often the Board answered this hypothetical question in the affirmative, declaring basic workplace rules on civility, confidentiality, misconduct, etc. violated employee rights. These decisions - and the vague, hypothetical theory on which they were based - left employers in the dark as to what they could include in their employee handbooks without breaking the law. Thankfully, the new guidelines restore the rights of employers to maintain reasonable work rules.