The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, 19-CA-090932

CourtNational Labor Relations Board
Writing for the CourtPhilip A. Miscimarra, Chairman
PartiesThe Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001.
Decision Date14 December 2017
Docket Number19-CA-095926,19-CA-090948,19-CA-090932

The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001.

Nos. 19-CA-090932, 19-CA-090948, 19-CA-095926

United States of America, National Labor Relations Board

December 14, 2017

By Chairman Miscimarra and Members Pearce, McFerran, Kaplan, and Emanuel


Philip A. Miscimarra, Chairman

This case involves the legality of an employer policy, which is one of a multitude of work rules, policies and employee handbook provisions that have been reviewed by the Board using a test set forth in Lutheran Heritage Village-Livonia. [2] In this case, the issue is whether Respondent's mere maintenance of a facially neutral rule is unlawful under the Lutheran Heritage “reasonably construe” standard, which is also sometimes called Lutheran Heritage “prong one” (because it is the first prong of a three-prong standard in Lutheran Heritage). Thus, in Lutheran Heritage, the Board stated:

[O]ur inquiry into whether the maintenance of a challenged rule is unlawful begins with the issue of whether the rule explicitly restricts activities protected by Section 7. If it does, we will find the rule unlawful. If the rule does not explicitly restrict activity protected by Section 7, the violation is dependent upon a showing of one of the following: (1) employees wo uld reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. [3]

Most of the cases decided under Lutheran Heritage have involved the Lutheran Heritage “reasonably construe” standard, [4] which the judge relied upon in the instant case. Specifically, the judge ruled that Respondent, The Boeing Company (Boeing), maintained a no-camera rule that constituted unlawful interference with the exercise of protected rights in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA or Act). [5]

Boeing designs and manufactures military and commercial aircraft at various facilities throughout the United States. The work undertaken at Boeing's facilities is highly sensitive; some of it is classified. Boeing's facilities are targets for espionage by competitors, foreign governments, and supporters of international terrorism, and Boeing faces a realistic threat of terrorist attack. Maintaining the security of its facilities and of the information housed therein is critical not only for Boeing's success as a business-particularly its eligibility to continue serving as a contractor to the federal government- but also for national security.

Boeing maintains a policy restricting the use of camera-enabled devices such as cell phones on its property. For convenience, we refer to this policy (which is contained in a more comprehensive policy Boeing calls “PRO-2783”) as the “no-camera rule.” Boeing's no-camera rule does not explicitly restrict activity protected by Section 7 of the Act, it was not adopted in response to NLRA-protected activity, and it has not been applied to restrict such activity. Nevertheless, applying prong one of the test set forth in Lutheran Heritage, the judge found that Boeing's maintenance of this rule violated Section 8(a)(1) of the Act. Based on Lutheran Heritage, the judge reasoned that maintenance of Boeing's no-camera rule was unlawful because employees “would reasonably construe” the rule to prohibit Section 7 activity. [6] In finding the no-camera rule unlawful, the judge gave no weight to Boeing's security needs for the rule.

The judge's decision in this case exposes fundamental problems with the Board's application of Lutheran Heritage when evaluating the maintenance of work rules, policies and employee handbook provisions. For the reasons set forth below, we have decided to overrule the Lutheran Heritage “reasonably construe” standard. The Board will no longer find unlawful the mere maintenance of facially neutral employment policies, work rules and handbook provisions based on a single inquiry, which made legality turn on whether an employee “would reasonably construe” a rule to prohibit some type of potential Section 7 activity that might (or might not) occur in the future. [7] In our view, multiple defects are inherent in the Lutheran Heritage test:

• The “reasonably construe” standard entails a single-minded consideration of NLRA-protected rights without taking into account any legitimate justifications associated with policies, rules and handbook provisions. This is contrary to Supreme Court precedent and to the Board's own cases
• The Lutheran Heritage standard, especially as applied in recent years, reflects several false premises that are contrary to our statute, the most important of which is a misguided belief that unless employers correctly anticipate and carve out every possible overlap with NLRA coverage employees are best served by not having employment policies rules and handbooks. Employees are disadvantaged when they are denied general guidance regarding what standards of conduct are required and what type of treatment they can reasonably expect from coworkers. In this respect, Lutheran Heritage has required perfection that literally is the enemy of the good.
• In many cases, Lutheran Heritage has been applied to invalidate facially neutral work rules sole- ly because they were ambiguous in some respect. This requirement of linguistic precision stands in sharp contrast to the treatment of “just cause” provisions, benefit plans, and other types of employment documents, and Lutheran Heritage fails to recognize that many ambiguities are inherent in the NLRA itself. See fns. 41, 42 & 43, infra.
• The Lutheran Heritage “reasonably construe” test has improperly limited the Board's own discretion. It has rendered unlawful every policy, rule and handbook provision an employee might “reasonably construe” to prohibit any type of Section 7 activity. It has not permitted the Board to recognize that some types of Section 7 activity may lie at the periphery of our statute or rarely if ever occur. Nor has Lutheran Heritage permitted the Board to afford greater protection to Section 7 activities that are central to the Act.
Lutheran Heritage has not permitted the Board to differentiate, to a sufficient degree, between and among different industries and work settings, nor has it permitted the Board to take into consideration specific events that may warrant a conclusion that particular justifications outweigh a potential future impact on some type of NLRA-protected activity.
• Finally, the Board's Lutheran Heritage “reasonably construe” test has defied all reasonable efforts to make it yield predictable results. It has been exceptionally difficult to apply, which has created enormous challenges for the Board and courts and immense uncertainty and litigation for employees, unions and employers.

Paradoxically, Lutheran Heritage is too simplistic at the same time it is too difficult to apply. The Board's responsibility is to discharge the “special function of applying the general provisions of the Act to the complexities of industrial life.” [8] Though well-intentioned, the Lutheran Heritage standard prevents the Board from giving meaningful consideration to the real-world “complexities” associated with many employment policies, work rules and handbook provisions. Moreover, Lutheran Heritage produced rampant confusion for employers, employees and unions. Indeed, the Board itself has struggled when attempting to apply Lutheran Heritage: since 2004, Board members have regularly disagreed with one another regarding the legality of particular rules or requirements, and in many cases, decisions by the Board (or a Board majority) have been overturned by the courts of appeals. [9]

These problems have been exacerbated by the zeal that has characterized the Board's application of the Lutheran Heritage “reasonably construe” test. Over the past decade and one-half, the Board has invalidated a large number of common-sense rules and requirements that most people would reasonably expect every employer to maintain. We do not believe that when Congress adopted the NLRA in 1935, it envisioned that an employer would violate federal law whenever employees were advised to “work harmoniously” [10] or conduct themselves in a “positive and professional manner.” [11] Nevertheless, in William Beaumont Hospital, the Board majority found that it violated federal law for a hospital to state that nurses and doctors should foster “harmonious interactions and relationships, ” and Chairman (then-Member) Miscimarra stated in dissent:

Nearly all employees in every workplace aspire to have “harmonious” dealings with their coworkers. Nobody can be surprised that a hospital, of all workplaces, would place a high value on “harmonious interactions and relationships.” There is no evidence that the requirement of “harmonious” relationships actually discouraged or interfered with NLRA-protected activity in this case. Yet, in the world created by Lutheran Heritage, it is unlawful to state what virtually every employee desires and what virtually everyone understands the employer reasonably expects. [12]

Under the standard we adopt today, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule. We emphasize that the Board will conduct this evaluation, consistent with the Board's “duty to strike the proper balance between . . . asserted business justifications and the invasion of employee rights in light of the Act and its policy, ” [13] focusing on the perspective of...

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