After a year of personnel shakeups, the Biden Board is in full swing and ready to review Trump Board precedent. Earlier this month, the Board issued a notice in its Stericycle, Inc. opinion inviting parties and amici to submit briefs addressing whether the Board should adopt a new standard to determine whether employer work rules violate Section 8(a)(1) of the National Labor Relations Act (NLRA).
Currently, the Trump Board opinion in Boeing Co. (2017) controls. Under Boeing Co., when the Board evaluates a facially neutral policy, the Board must look to: (1) the nature and extent of the potential impact on rights guaranteed under the NLRA; and (2) legitimate justifications associated with the policy. Boeing Co.’s two-part test is notable for being particularly employer-friendly. With the Boeing Co. test, the Board approved employer confidentiality rules, non-disparagement rules, social media rules, media communication rules, civility rules, and professional manner rules. In other words, employers were able to maintain a wider array of policies without violating the NLRA.
The Trump Board’s time has come and gone, however, and the Biden Board is now advancing a more employee-friendly agenda. With last week’s Stericycle, Inc. opinion, the Board now proposes three questions for interested parties, including whether it should continue using the Boeing standard, whether interpretation of the law should be modified in certain ways (including on the allocation of the burden of proof), and whether the Board is properly balancing employee rights and employer business interests.
Members Kaplan (R) and Ring (R) dissented. They argued that the Board should not reconsider Boeing Co. or cases applying its standard because Boeing Co. successfully protects employees’ Section 7 rights and employers’ legitimate business interests.
The Board’s willingness to reconsider Boeing Co. should come as no surprise to those who have been following Board developments. On August 12, 2021, Board General Counsel Abruzzo issued Memorandum GC 21-04, which highlighted several areas of law that the Board would likely be reevaluating. One area listed by GC Abruzzo for review was employer handbook rules.
As 2022 gets under way, so too (apparently) does the Board’s work we have predicted was coming. Reevaluation (and likely reversal) of Trump Board precedent in a way that will likely elevate union interests over those of employers. Labor professionals on the management side would be well-advised to follow developments with Stericycle, Inc. in order to see whether their own handbook policies may soon come under heightened scrutiny.