Employer Rules Still Get Labor Board Scrutiny, Even After Boeing

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By Lawrence E. Dubé

The NLRB announced a new standard in late 2017 for determining whether employers’ seemingly neutral workplace rules interfere with workers’ rights to organize or engage in other protected activities under the National Labor Relations Act. The new approach: balancing the potential impact of a rule on employees’ NLRA rights with an employer’s legitimate business justifications for having the rule.

In its 3-2 ruling in Boeing Corp., the National labor Relations Board overruled a precedent that held policies unlawful if they could be “reasonably construed” by employees as impairing their rights under the NLRA. Instead, the board said it would examine both the potential impact on employees’ NLRA rights and an employer’s legitimate business justifications for adopting or maintaining the rule.

The question is how much Boeing will change the board’s view of facially neutral rules. An administrative law judge’s March 9 decision against the U.S. Postal Service suggests the December 2017 ruling won’t stop the board from challenging the legality of particular policies and rules.

ALJ Finds Some Postal Service Rules Unlawful

Acting on an individual charge, an NLRB regional director issued a complaint in June 2017 alleging that the Postal Service maintained several unlawful rules in its national and local policies.

Administrative Law Judge Mara-Louise Anzalone acknowledged that the Boeing decision is now the board’s policy, but she reached several different conclusions about its application to USPS rules.

Anzalone said the Postal Service has a nationwide social media policy that prohibits employees from disclosing all “proprietary information and information covered by the Privacy Act.” The ALJ observed the policy only applies to employees who used social media in an “official capacity” and only covers information governed by the Privacy Act. Anzalone said USPS has a unique position because it’s a federal agency with a “compelling” interest in protecting confidential information under the Privacy Act. She wrote that the policy is lawful under Boeing.

However, the ALJ said the Postal Service couldn’t justify a rule prohibiting employees from disclosing any USPS information “that is not otherwise public without authorized management approval.” Anzalone said the rule was sweeping in scope and required employees to seek approval for activities that could easily include communications protected by the NLRA. Stating that the effect on employee rights was more than slight, Anazalone wrote that viewing “this rule within the framework of the Boeing balancing text, I find the scale is decisively tipped in favor of the right of Respondent’s employees to engage in protected conduct.”

The Postal Service maintained a policy that barred employees from using any information resources, on or off duty, to embarrass or discredit the agency, as well as a rule that requires employees to “cooperate in any postal investigation, including Office of Inspector General investigations.”

Anzalone found the first rule was so broad that it would prohibit employees from engaging in online criticism of the employer. “Because the rule so squarely disallows courteous online protected conduct,” the ALJ wrote, “I find that it cannot be rationalized as an effort to promote workplace civility.”

Attorneys involved in the NLRB proceeding didn’t respond immediately to a request for comment.

NLRB attorneys represented the board’s general counsel. USPS attorneys represented the Postal Service.

The case is United States Postal Serv., 2018 BL 81336, N.L.R.B. A.L.J., Case 28-CA-175106, 3/9/18.

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