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NLRB Overrules Boeing, Upending Commonsense Workplace Policies

August 9, 2023

On Aug. 2, the National Labor Relations Board issued a decision in Stericycle Inc., which overruled Boeing and adopted a new legal standard for evaluating employer work rules challenged as facially unlawful under Section 8(a)(1) of the National Labor Relations Act. The Stericycle decision could fundamentally affect the labor policies of many employers in the construction industry.

The ABC-led Coalition for a Democratic Workplace immediately issued a statement, denouncing the decision. “The Board’s decision makes it nearly impossible for employers across the country to provide safe, hostile-free workplaces for workers,” said Kristen Swearingen, ABC vice president of legislative & political affairs and chair of the CDW. “The Board has inserted instability and confusion into the workplace and created risks for employers attempting to implement commonsense policies that protect workers, customers and the community.

“The better approach, by far, was the Board’s decision in Boeing, which ensured the Board would consider both the employer’s legitimate justifications and the potential impact on workers’ NLRB rights when assessing a facially neutral policy, rule or handbook provision,” said Swearingen. “This standard clearly and appropriately balanced the analysis and ensured employers can provide safe workplaces for all.

The Board’s Stericycle decision will only create confusion for the regulated community, and CDW will pursue avenues to reverse this dangerous precedent.”

In a NLRB press release announcing the decision, Chairman Lauren McFerran stated, “Boeing gave too little consideration to the chilling effect that work rules can have on workers’ Section 7 rights. Under the new standard, the Board will carefully consider both the potential impact of work rules on employees and the interests that employers articulate in support of their rules. By requiring employers to narrowly tailor their rules to serve those interests, the Board will better support the policies of the National Labor Relations Act.”

In March 2022, the CDW filed an amicus brief in the Board’s Stericycle case, opposing the NLRB’s announced plan to overturn the 2017 Trump-era NLRB Boeing decision, dealing with the legality of many facially neutral employer handbook provisions. ABC, along with several other organizations, joined the brief.

ABC is continuing to review the Stericycle decision and will provide any new developments in Newsline.

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