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Retroactive Application of Boeing Co. Leaves Employer Grounded in Employment Policy ULP

Recent changes at the National Labor Relations Board gave employers hope that some Obama-era regulations and rulings would be loosened. However, despite some favorable rulings, the recent decision in Nicholson Terminal & Dock Co. demonstrates it will take time for the Board’s new rulings to roll down to the Administrative Law Judge level. In reviewing an employee handbook policy, the ALJ in Nicholson seemingly stuck to the previous administration’s standard for review, rather than apply the new Boeing Co. standard established by the current Board in December 2017, which loosened some of the standards applied in reviewing employment rules and policies.

Despite the new relaxed balancing test, the ALJ held the policies at issue were unlawful because the employer failed to provide any evidence or argument that justified the policies. Consequently, the policies were unlawfully overbroad and violated the Act. With respect to the “no-camera” policy at issue, the ALJ acknowledged Boeing Co. specifically held a no-camera policy may be lawful, stating “…the Board has provided guidance that, in general, it expects to find no-camera rules lawful.” Even with that backdrop, the ALJ ultimately found the employer’s alleged justifications of “safety” and “no distractions” unconvincing.

Likewise, the ALJ held the “no moonlighting” rule violated the Act. This policy required that “…employees do not have another job.” The ALJ found the policy could be reasonably interpreted to prevent employees from working for the union. She concluded that though a legitimate employer interest, as written the policy did not outweigh the rights of employees to participate in union activities on non-working time.

The takeaway from Nicholson is that application of the Boeing Co. standard is still in its early stages. Despite the new balancing test, a broadly-written policy — even one regarding matters on which the Board intendeds to grant employers some measure of relief — currently will not withstand scrutiny under the Act. As more employment policy cases move forward, employers will begin to see the new Boeing Co. standard applied with additional leeway given to policies likely to previously have been found unlawful. Stay tuned.

For more information or to discuss employment policies in light of Boeing Co., contact author Paul Burmeister.