NLRB Invites Briefs Regarding Work Rules Standard

In a notice issued today in Stericycle, Inc. 371 NLRB No. 48 (2021), the National Labor Relations Board invited parties and amici to submit briefs addressing whether the Board should adopt a new legal standard to determine whether employer work rules violate Section 8(a)(1) of the National Labor Relations Act. Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, which include the right to form a union, the right to bargain with their employer over terms and conditions of employment, and the right to join together in other ways for their mutual aid and protection. 

In 2017, the Board established a new standard for analyzing the lawfulness of employer work rules in Boeing Co., 365 NLRB No. 154 (2017), which was later refined in LA Specialty Produce Co., 368 NLRB No. 93 (2019).

Given the ubiquity of employer work rules and the importance of ensuring that such rules do not interfere with the exercise of employees’ rights under Section 7 of the Act any more than is justified by legitimate employer interests, the Board believes that it is appropriate, with public participation, to evaluate the standard adopted in Boeing, revised in LA Specialty Produce, and applied in subsequent cases.

In today’s notice, the Board invites the filing of briefs to afford the parties and interested amici the opportunity to address the following questions:

1. Should the Board continue to adhere to the standard adopted in Boeing Co. and revised in LA Specialty Produce Co.?

2. In what respects, if any, should the Board modify existing law addressing the maintenance of employer work rules to better ensure that:

(a) the Board interprets work rules in a way that accounts for the economic dependence of employees on their employers and the related potential for a work rule to chill the exercise of Section 7 rights by employees;

(b) the Board properly allocates the burden of proof in cases challenging an employer’s maintenance of a work rule under Section 8(a)(1); and

(c) the Board appropriately balances employees’ rights under Section 7 and employers’ legitimate business interests?

3. Should the Board continue to hold that certain categories of work rules—such as investigative-confidentiality rules as addressed in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144, (2019), non-disparagement rules as addressed in Motor City Pawn Brokers, 369 NLRB No. 132 (2020), and rules prohibiting outside employment as addressed in Nicholson Terminal & Dock Co., 369 NLRB No. 147 (2020), and G&E Real Estate Management Services d/b/a Newmark Grubb Knight Frank, 369 NLRB No. 121 (2020)—are always lawful to maintain?

Chairman McFerran and Members Wilcox and Prouty joined in issuing the notice and invitation for the Board. Members Kaplan and Ring dissented. 

Briefs not exceeding 20 pages in length may be filed with the Board in Washington, DC on or before March 7, 2022. The parties (but not amici) may file responsive briefs on or before March 22, 2022 which shall not exceed 30 pages in length.  No other responsive briefs will be accepted.  Motions for extensions of time in which to file briefs will not be granted absent compelling circumstances. The parties and amici shall file briefs electronically by E-Filing on nlrb.gov. If assistance is needed in E-filing, please contact the Office of Executive Secretary at 202-273-1940.