NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex- a. the Board interprets work rules in a way that
ecutive Secretary, National Labor Relations Board, Washington, D.C. accounts for the economic dependence of em-
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes. ployees on their employers and the related poten-
Stericycle, Inc. and Teamsters Local 628. Cases 04– tial for a work rule to chill the exercise of Section
CA–137660, 04–CA–145466, 04–CA–158277, and 7 rights by employees;
04–CA–160621 b. the Board properly allocates the burden of
proof in cases challenging an employer’s mainte-
August 2, 2023 nance of a work rule under Section 8(a)(1); and
DECISION AND ORDER REMANDING c. the Board appropriately balances employees’
BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, rights under Section 7 and employers’ legitimate
WILCOX, AND PROUTY business interests?
Today, after previously issuing a notice and invitation 3. Should the Board continue to hold that certain cate-
for briefing, we adopt a new legal standard to decide gories of work rules—such as investigative-
whether an employer’s work rule that does not expressly confidentiality rules as addressed in Apogee Retail LLC
restrict employees’ protected concerted activity under d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019),
Section 7 of the National Labor Relations Act (Act) is non-disparagement rules as addressed in Motor City
facially unlawful under Section 8(a)(1) of the Act. Here, Pawn Brokers, 369 NLRB No. 132 (2020), and rules
an administrative law judge found that the Respondent prohibiting outside employment as addressed in Ni-
violated Section 8(a)(1) by maintaining certain rules for cholson Terminal & Dock Co., 369 NLRB No. 147
its employees that addressed personal conduct, conflicts (2020), and G&E Real Estate Management Services
of interest, and confidentiality of harassment com- d/b/a Newmark Grubb Knight Frank, 369 NLRB No.
plaints.1 In making those findings, the judge applied the 121 (2020)—are always lawful to maintain?
standard established by a divided Board in Boeing Co.,
365 NLRB No. 154 (2017), which sua sponte reversed Stericycle, Inc., 371 NLRB No. 48, slip op. at 1–2 (2022).
the standard announced in Lutheran Heritage Village- Having carefully considered the briefs of the parties
Livonia, 343 NLRB 646 (2004). and amici, as well as the Board’s past experiences re-
Given the ubiquity of work rules and the importance of garding these issues and the view of our dissenting col-
ensuring that such rules do not operate to undermine em- league, we have decided to adopt an approach to as-
ployees’ exercise of their rights under the Act, we sought sessing facial challenges to employer work rules under
public input on the standard adopted in Boeing, then pur- Section 8(a)(1) that builds on and revises the Lutheran
portedly clarified in LA Specialty Produce Co., 368 Heritage standard. As we will explain, the primary prob-
NLRB No. 93 (2019), and applied in subsequent cases lem with the standard from Boeing and LA Specialty
where the Board found that several types of work rules Produce is that it permits employers to adopt overbroad
were categorically lawful for employers to maintain, es- work rules that chill employees’ exercise of their rights
sentially without regard to how the particular rules were under Section 7 of the Act, which include the “right to
drafted. self-organization, to form, join, or assist labor organiza-
Accordingly, we invited the parties and interested ami- tions, to bargain collectively . . . , and to engage in other
ci to address the following questions: concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.” 29 U.S.C. § 157.
1. Should the Board continue to adhere to the standard To begin, the current standard fails to account for the
adopted in Boeing Co., 365 NLRB No. 154 (2017), and economic dependency of employees on their employers.
revised in LA Specialty Produce Co., 368 NLRB No. Because employees are typically (and understandably)
93 (2019)? anxious to avoid discharge or discipline, they are reason-
2. In what respects, if any, should the Board modify ably inclined both to construe an ambiguous work rule to
existing law addressing the maintenance of employer prohibit statutorily protected activities and to avoid the
work rules to better ensure that: risk of violating the rule by engaging in such activity. In
turn, Boeing gives too little weight to the burden a work
1 On September 4, 2020, Administrative Law Judge Michael A. rule could impose on employees’ Section 7 rights. At the
Rosas issued the attached supplemental decision. The Respondent, the same time, Boeing’s purported balancing test gives too
General Counsel, and the Charging Party each filed exceptions and a much weight to employer interests. Crucially, Boeing
supporting brief, and the General Counsel and the Charging Party each
filed an answering brief. On May 6, 2021, the National Labor Rela-
also condones overbroad work rules by not requiring the
tions Board granted counsel for the Acting General Counsel’s Motion party drafting the work rules—the employer—to narrow-
to Withdraw Exceptions Three through Nine. The Board has consid- ly tailor its rules to only promote its legitimate and sub-
ered the decision and the record in light of the exceptions and briefs stantial business interests while avoiding burdening em-
and has decided to affirm the judge’s rulings, findings, and conclusions
only to the extent consistent with this Decision and Order Remanding. ployee rights.
372 NLRB No. 113
,2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The standard we adopt today remedies these funda- that cannot be achieved by a more narrowly tailored rule.
mental defects. We adopt a modified version of the basic Because we overrule Boeing, LA Specialty Produce, and
framework set forth in Lutheran Heritage, which recog- the work rules cases relying on them, including those that
nized that overbroad workplace rules and polices may placed rules into an “always lawful” category based
chill employees in the exercise of their Section 7 rights simply on their subject matter, we reject Boeing’s cate-
and properly focused the Board’s inquiry on NLRA- gorical approach, instead returning to a particularized
protected rights. During the 13 years when the Lutheran analysis of specific rules, their language, and the em-
Heritage standard was in place, reviewing courts repeat- ployer interests actually invoked to justify them.
edly and uncontroversially applied and upheld the stand- As under Lutheran Heritage, our standard requires the
ard. No court rejected the Lutheran Heritage standard or General Counsel to prove that a challenged rule has a
held that the Board was, in fact, applying some standard reasonable tendency to chill employees from exercising
other than the one it articulated.2 However, although their Section 7 rights. We clarify that the Board will
Lutheran Heritage implicitly allowed the Board to eval- interpret the rule from the perspective of an employee
uate employer interests when considering whether a par- who is subject to the rule and economically dependent on
ticular rule was unlawfully overbroad, the standard itself the employer, and who also contemplates engaging in
did not clearly address how employer interests factored protected concerted activity. Consistent with this per-
into the Board’s analysis. The modified standard we spective, the employer’s intent in maintaining a rule is
adopt today makes explicit that an employer can rebut immaterial. Rather, if an employee could reasonably
the presumption that a rule is unlawful by proving that it interpret the rule to have a coercive meaning, the General
advances legitimate and substantial business interests Counsel will carry her burden, even if a contrary, nonco-
ercive interpretation of the rule is also reasonable. If the
2 See G4S Secure Solutions Inc. v. NLRB, 707 Fed.Appx. 610, 613
General Counsel carries her burden, the rule is presump-
fn. 2 (11th Cir. 2017) (mem); Midwest Division–MMC, LLC v. NLRB,
tively unlawful, but the employer may rebut that pre-
867 F.3d 1288, 1302 (D.C. Cir. 2017); T-Mobile USA, Inc. v. NLRB,
865 F.3d 265, 270 (5th Cir. 2017); Care One at Madison Avenue, LLC sumption by proving that the rule advances a legitimate
v. NLRB, 832 F.3d 351, 362 (D.C. Cir. 2016); Quicken Loans, Inc. v. and substantial business interest and that the employer is
NLRB, 830 F.3d 542, 545 (D.C. Cir. 2016); Three D, LLC v. NLRB, 629 unable to advance that interest with a more narrowly
Fed.Appx. 33, 38 (2d Cir. 2015) (mem); World Color (USA) Corp. v.
NLRB, 776 F.3d 17, 20 (D.C. Cir. 2015) (approving standard but find-
tailored rule. If the employer proves its defense, then the
ing that it was misapplied); Flex Frac Logistics, LLC v. NLRB, 746 work rule will be found lawful to maintain.3
F.3d 205, 208-209 (5th Cir. 2014); NLRB v. Arkema, Inc., 710 F.3d I.
308, 318 (5th Cir. 2013) (approving standard but finding that it was
misapplied); NLRB v. Northeastern Land Services, Ltd., 645 F.3d 475, Applying Section 8(a)(1) of the Act, the Board has
482 (1st Cir. 2011); Auto Workers v. NLRB, 520 F.3d 192, 197 (2d Cir. long and consistently recognized that an employer’s
2008); Cintas Corp. v. NLRB, 482 F.3d 463, 467 (D.C. Cir. 2007); mere maintenance of a work rule may unlawfully inter-
Guardsmark, LLC v. NLRB, 475 F.3d 369, 374-376 (D.C. Cir. 2007).
The dissent’s treatment of the cases cited above confirms that the fere with, restrain, or coerce employees in the exercise of
Lutheran Heritage standard was uncontroversial in the reviewing their Section 7 rights. See Republic Aviation Corp., 51
courts. To be sure, the dissent correctly observes that several of the NLRB 1186, 1187 (1943). The Supreme Court long ago
cases cited above did not involve a challenge to the Lutheran Heritage confirmed the Board’s authority to regulate employer
standard, but rather the application of that standard. However, the
absence of challenges to the Lutheran Heritage standard demonstrates work rules, as part of the flexibility the Board requires
that it enjoyed widespread acceptance. Moreover, notwithstanding the “to accomplish the dominant purpose” of the Act: to pro-
dissent’s assertion that the courts’ approval of the standard was “tepid”
in some cases, the courts still (in the dissent’s words) “endorse[d]” it 3 The approach we adopt here applies only to facial challenges to
and recognized that it was “prophylactic” and “subject to deference.” the maintenance of work rules that do not expressly apply to employ-
As to specific cases, the dissent seeks to distinguish Care One at ees’ protected concerted activity. We do not change existing law that
Madison Avenue, LLC on the ground that it “did not present a rules- an employer’s maintenance of a work rule will be deemed unlawful
maintenance issue at all.” In enforcing the Board’s order, however, the when it explicitly restricts Sec. 7 activity or was promulgated in re-
court quoted the Lutheran Heritage standard and concluded that the sponse to union or other protected concerted activity. See, e.g., First
employer’s posted memo in that case “could reasonably be understood American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54, slip
as instituting a new policy of disciplining protected Section 7 activity.” op. at 1 fn. 7 (2020) (finding unlawful a “resident-centered” conversa-
832 F.3d at 362-363. As to Cintas Corp., the dissent says that case tion policy promulgated in response to union activity); PAE Applied
militates “against” our decision. But the dissent concedes that the court Technologies, LLC, 367 NLRB No. 105, slip op. at 2 fn. 6 (2019) (find-
applied Lutheran Heritage. In any event, Cintas Corp. supports the ing unlawful a rule prohibiting contacting customers concerning union
standard we announce here, as its conclusion was that “[a] more nar- issues because it explicitly restricted Sec. 7 activity). We also do not
rowly tailored rule that does not interfere with protected employee address the unlawful application of work rules that are lawful to main-
activity would be sufficient to accomplish the Company’s presumed tain. Until recently, the Board had long held that an employer’s contin-
interest in protecting confidential information.” 482 F.3d at 470 (em- ued maintenance of a work rule was unlawful when the rule has been
phasis added). Requiring narrow tailoring is precisely what our stand- applied to restrict the exercise of Sec. 7 rights. But in AT&T Mobility,
ard does and what the dissent rejects. As to Arkema, Inc. and T-Mobile LLC, the Board reversed that precedent, holding that an employer is not
USA, Inc., the dissent says those decisions forbid unreasonable inter- required to rescind a rule that is facially lawful, but has been unlawfully
pretations of work rules from being used to deem them unlawful. Lu- applied. 370 NLRB No. 121, slip op. at 7 (2021). Because this issue is
theran Heritage did not say otherwise, nor do we contend that it did. not presented here, we do not revisit it at this time.
, STERICYCLE, INC. 3
tect “the right of employees to organize for mutual aid interests that the employer may be trying to advance by
without employer interference.” Republic Aviation Corp. maintaining its rule.6
v. NLRB, 324 U.S. 793, 798 (1945).4 Because overbroad Over the past nearly 25 years, the Board has attempted
and ambiguous work rules may have a coercive effect on to articulate and consistently apply a generally applicable
employees, the Board and courts have long acknowl- test under Section 8(a)(1) for assessing facial challenges
edged that the regulation of work rules “serves an im- to work rules. For almost half that time, the Lutheran
portant prophylactic function: it allows the Board to Heritage standard provided the interpretive principles
block rules that might chill the exercise of employees’ relevant to assessing the impact of a given rule on em-
rights by cowing the employees into inaction, rather than ployees’ rights. We detail the Board’s recent history
forcing the Board to ‘wait[] until that chill is manifest,’ below with an eye toward explaining why a modified
and then try to ‘undertake the difficult task of dispelling version of the Lutheran Heritage standard is the best
it.’” Quicken Loans, Inc., supra, 830 F.3d at 549 (quot- approach to evaluating facial challenges to work rules in
ing Flex Frac Logistics, LLC, 358 NLRB 1131, 1132 light of the Board’s experience and long-established stat-
(2012), enfd. in relevant part 746 F.3d 205 (5th Cir. utory principles. Our decision today does not disturb the
2014)). Board’s long-established doctrines covering work rules
In its decisions carrying out this important function, that address union (or other protected) solicitation, distri-
the Board has grappled with two interrelated issues. The bution, or insignia.7 Consistent with the Board’s deci-
first has been determining the appropriate interpretive sions in both Lutheran Heritage and Boeing, we preserve
principles to apply in evaluating the potentially deleteri- Board precedent in those areas.
ous impact of a work rule on employees’ exercise of their A. Lafayette Park
Section 7 rights. In doing so, the Board regularly has
The recent history of the Board’s approach to work
assessed work rules to determine “the reasonably fore-
rules begins with Lafayette Park Hotel, 326 NLRB 824
seeable effects of the wording of the rule on the conduct
(1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999). There,
of the employees,” observing that “where the language is
a full Board (Chairman Gould and Members Fox, Lieb-
ambiguous and may be misinterpreted by the employees
man, Hurtgen, and Brame) considered facial challenges
in such a way as to cause them to refrain from exercising
to rules defining various types of “unacceptable con-
their statutory rights, then the rule is invalid even if in-
duct.” 326 NLRB at 824. The Board identified “the
terpreted lawfully by the employer in practice.” Solo
appropriate inquiry” as “whether the rules would reason-
Cup Co., 144 NLRB 1481, 1481–1482 (1963).5 The
ably tend to chill employees in the exercise of their Sec-
second issue for the Board has been determining how to
tion 7 rights” and that, where there is a likely chilling
ensure that the rule minimizes any potential impact on
effect, “the Board may conclude that their maintenance is
employee rights, notwithstanding the legitimate business
an unfair labor practice, even absent evidence of en-
4 The federal courts of appeals have consistently recognized that an
6 In some of its earliest work rules decisions, the Board acknowl-
employer’s mere maintenance of a work rule may be unlawful, apart
from any application of the rule. See, e.g., Banner Health System v. edged that “special circumstances” could justify an employer’s mainte-
NLRB, 851 F.3d 35, 40–41 (D.C. Cir. 2017); Northeastern Land Ser- nance of a work rule that, absent those circumstances, would be unrea-
vices v. NLRB, 560 F.3d 36, 42–44 (1st Cir. 2009); Beverly Health & sonable to maintain. See, e.g., Republic Aviation, 51 NLRB at 1187.
Rehabilitation Services, Inc., 297 F.3d 468, 478 (6th Cir. 2002). The The Supreme Court likewise acknowledged that the Board’s role in the
Board has never deviated from this principle, even as it has changed its work rules context entails “working out an adjustment between the
approach to determining when a rule is unlawful to maintain. undisputed right of self-organization assured to employees under the []
5 See also, e.g., Hyland Machine Co., 210 NLRB 1063, 1071 (1974) Act and the equally undisputed right of employers to maintain disci-
(“[T]he ambiguous language might be interpreted by workers in such a pline in their establishments.” Republic Aviation, 324 U.S. at 797–798.
way as to cause them to refrain from exercising their statutory rights, Even so, while the Board recognized in certain rules cases that employ-
hence the rule is invalid even if [r]espondent intended or interpreted it er justifications were relevant to the analysis, see, e.g., American Cast
privately otherwise.”); MPL, Inc., 163 NLRB 952, 955 (1967) (“[T]he Iron Pipe Co., 234 NLRB 1126, 1131 (1978); McDonnell Douglas
[r]espondent’s broad no-solicitation rule impinges upon the rights of its Corp., 204 NLRB 1110, 1110 (1973), in other cases the Board did not
employees and constitutes an unreasonable impediment to self- appear to factor employer interests into the analysis, see, e.g., Southern
organization. Moreover, even assuming that the rule was not intended Maryland Hospital Center, 293 NLRB 1209, 1222 (1989). As the
by [r]espondent to be, and was not, in fact, applied to prohibit union Board continued to develop its work-rules jurisprudence, some specific
solicitation during nonworking time, the reasonable, foreseeable effect holdings emerged to govern particular types of rules. For instance,
of the rule as worded is capable of such interpretation by employees, absent special circumstances, a rule banning solicitation by employees
and thus would tend to cause them to refrain from exercising their on the employer’s property during nonworking time is facially unlaw-
statutory rights.”); Pueblo Supermarkets, Inc., 156 NLRB 654, 656 ful, Republic Aviation, 51 NLRB at 1187; absent special circumstances,
(1966) (“The promulgation of an unlawfully phrased rule has an inhibi- a rule banning the distribution of literature by employees on the em-
tory effect upon employees’ exercise of their statutory rights, regardless ployer’s property during nonworking time and in nonworking areas is
of the innocence of purpose for the rule or the undisclosed limitations facially unlawful, Stoddard-Quirk Mfg. Co., 138 NLRB 615, 621
placed upon its use and application.”). (1962); and absent special circumstances, a rule prohibiting employees
from wearing union insignia on the employer’s property during work-
ing time is facially unlawful, Boeing Airplane Co., 103 NLRB 1025,
1026 (1953).
7 See fn. 6, supra.
, 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forcement.” Id. at 825. For that standard, the Board re- Section 7.” Id. at 646 (emphasis in original). If it does
ferred to the Supreme Court’s decision in Republic Avia- not, a violation “is dependent upon a showing of one of
tion, quoting its admonition that assessing the challenged the following: (1) employees would reasonably construe
rules involves “working out an adjustment between the the language to prohibit Section 7 activity; (2) the rule
undisputed right of self-organization assured to employ- was promulgated in response to union activity; or (3) the
ees under the [] Act and the equally undisputed right of rule has been applied to restrict the exercise of Section 7
employers to maintain discipline in their establishments.” rights.” Id. at 647. Under the first of these prongs, the
Id. (quoting 324 U.S. at 797–798). Member Hurtgen, majority instructed that the Board “must refrain from
disagreeing with the majority, expressed his view that reading particular phrases in isolation,” “must not pre-
“[i]f a rule reasonably chills the exercise of Sec. 7 rights, sume” that a rule will cause “improper interference with
it can nonetheless be lawful if it is justified by significant employee rights,” and should not conclude “that a rea-
employer interests.” Lafayette Park, 326 NLRB at 825 sonable employee would read [a] rule to apply to [Sec-
fn. 5. tion 7] activity simply because the rule could be inter-
In analyzing the challenged rules’ impact on employ- preted that way.” Id. at 646–647 (emphasis in original).
ees under its announced standard, the Lafayette Park In an effort to refine the standard applied in Lafayette
Board did consider the employer’s interests in maintain- Park, the Board in Lutheran Heritage observed that it
ing its rules, if not in the manner Member Hurtgen was not enough to establish a violation of Section 8(a)(1)
sought. See id. at 825–827, 829. For instance, when merely because a rule “could conceivably be read to cov-
assessing a rule forbidding employees from making per- er Section 7 activity,” but in referring to how a reasona-
sonal use of certain of the employer’s facilities, the ble employee “would read” the rule, the majority did not
Board noted the “legitimate business reasons for such a expressly hold that the coercive meaning must be the
rule” and its view that “employees would recognize the only reasonable interpretation of the rule or the most rea-
rule for its legitimate purpose.” Id. at 827. Similarly, sonable interpretation. Id. at 647 (emphasis added). The
when assessing the employer’s rule forbidding fraterniza- Lutheran Heritage Board acknowledged that the rules it
tion between employees and customers, the Board noted was scrutinizing “serve legitimate business purposes”
that employees “would recognize the legitimate business and that reasonable employees “would realize the lawful
reasons for which such a rule was promulgated, and purpose of the challenged rules”—thereby suggesting
would not reasonably believe that it reaches Section 7 that such considerations had informed its conclusions—
activity.” Id. (internal footnote omitted). Although the but again the Lutheran Heritage majority did not clearly
Board considered the employer’s interests (as effectively explain how employer interests factored into the analysis.
communicated to employees), it did so in the course of See id. at 647–648. Finally, Lutheran Heritage rejected
interpreting a rule and assessing its potential chilling a categorical approach to work rules. The majority
effect on employees. acknowledged the case-by-case nature of the Board’s
The Lafayette Park Board was divided, too, in how to work rules decisions, noting that it did “not consider it
correctly apply the announced standard to particular necessary or appropriate to decide in this case what rules
rules. In a partial dissent, Members Fox and Liebman in a future hypothetical case would be unlawful.” Id. at
thought the majority merely paid “lip service” to the ap- 648.
plicable interpretive principles in upholding rules that, in In dissent, Members Liebman and Walsh raised the is-
their view, had “the likely effect of chilling Section 7 sue of balancing. They argued that in Lafayette Park the
activity.” Id. at 830. In response, Chairman Gould char- Board had recognized that “determining the lawfulness
acterized their dissenting approach as one that improper- of an employer’s work rules requires balancing compet-
ly “pars[ed] out certain words and create[ed] theoretical ing interests,” and they accused the majority of
definitions” for rules “that differ from the obvious ones.” “[i]gnoring the employees’ side of the balance.” Id. at
Id. He asserted that the Board should not “focus[] on 650. The dissenters agreed that employers have legiti-
whether any language in the rules could theoretically mate business interests that warrant protection through
encompass Section 7 activity” but, instead, should focus the maintenance of work rules but contended that the
on “whether a reasonable employee could believe that employer must do so “subject to the requirement that
the rule prohibits protected activity.” Id. employers articulate those rules with sufficient specifici-
B. Lutheran Heritage ty that they do not impinge on employees’ free exercise
of Section 7 rights.” Id. at 652.
A few years later, in another full-Board decision, Lu-
Lutheran Heritage, then, again demonstrated the
theran Heritage Village-Livonia, 343 NLRB 646 (2004),
Board’s ongoing efforts to develop a standard that grap-
the majority (Chairman Battista and Members
pled with the two key questions posed in work rules cas-
Schaumber and Meisburg) construed Lafayette Park to
es: (1) how to interpret a rule and (2) whether and how
mean that the relevant inquiry “begins with the issue of
employer interests factor into the analysis.
whether the rule explicitly restricts activities protected by
