On February 1, 2021, the Office of the General Counsel for the National Labor Relations Board (NLRB) issued a memorandum rescinding several memoranda (Memorandum GC 21-02), which were issued during the Trump Administration. Among those previously issued memoranda being rescinded was Memorandum GC-18-04, Guidance on Handbook Rules. This memorandum was a detailed analysis of the Board’s decision in The Boeing Company, 365 NLRB No. 154 (December 14, 2017). The Boeing decision itself set out a balancing test in making a determination of whether an employer’s work rule is in violation of Section 8(a)(1) of the National Labor Relations Act.
In Boeing, the Board established a new standard that focuses on the balance between a work rule’s adverse impact on employees’ ability to exercise their Section 7 rights and the work rule’s link to an employers’ right to maintain discipline and productivity.
The Boeing decision established three categories of workplace rules: (1) rules that are lawful to maintain; (2) rules warranting individualized scrutiny; and (3) rules that are unlawful to maintain. The Guidance on Handbook Rules memorandum went a step further than the decision and took various types of work rules and placed them within one of the three categories established by the Boeing case.
The Office of the General Counsel has indicated that the reason for the rescission of the Guidance on Handbook Rules memorandum is because it is no longer necessary given existing Boeing case interpretation. However, the rescission of the memorandum exemplifies a shift in the direction of the NLRB. We will likely see changes to the Boeing rule in the near future. Stay tuned as it is only a matter of time before we get clarification on how the Board will be interpreting workplace rules. Call Employers Council with questions; we can help.