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In The Boeing Company, 365 NLRB No. 154 (2017), the National Labor Relations Board (NLRB) reassessed the standard it would apply when determining the facial validity of otherwise neutral work rules based upon a balancing between a given rule’s negative impact on employee’s ability to exercise their statutory rights and the rule’s connection to an employer’s right to maintain discipline and productivity in the workplace. For the purpose of applying this new balancing standard, the Boeing Board trifurcated all work rules into one of three distinct categories. First, a Category 1 rule is a work rule that does not prohibit or interfere with the exercise of statutory rights or one whose potential impact on statutory rights is relatively slight or outweighed by the business justification associated with the rule. According to Boeing, the maintenance of such rules is to be considered lawful. Next are Category 2 rules, which are neither “obviously” lawful nor unlawful and which may adversely impact NLRA-guaranteed rights. Under Boeing, their lawfulness is to be determined on a case-by-case basis and depends upon whether the rule’s adverse impact on statutory rights is outweighed by the employer’s interest in maintaining the rule. Finally, Category 3 rules are those that on their face prohibit or limit statutory rights and whose impact on statutory rights outweigh the business justifications associated with the rule. Category 3 rules are facially invalid, rendering their mere maintenance unlawful.
Continue Reading NLRB’s Division of Advice Gives “Advice” As to the Application of Boeing — When a Work Rule/Employment Agreement is Facially Valid Under the NLRA in Union and Union Free Workplaces