On January 29, 2018, the DC Circuit remanded a 2016 NLRB decision – Grill Concepts Servs., Inc., 364 NLRB No. 36 (2016) back to the Board for reconsideration of several employee handbook violations found unlawful under the now-replaced Lutheran Heritage standard in light of the Board’s new standard recognized in Boeing Co., 365 NLRB No. 154 (2017).

As explained in a previous Alert, the prior standard considered work rules unlawful if employees would “reasonably construe” them to interfere with union or other protected concerted activity under Section 7 of the Act.  Until this past December, the Obama Board unreasonably interpreted and applied this decision for several years. That, however, changed in Boeing when the Board adopted a balancing approach that considers “the nature and extent of the potential impact” on Section 7 rights and the employer’s “legitimate justifications” for the rule.

Fast forward to this case and the DC Circuit has agreed to remand several work rules the Board previously found unlawful under the now-overruled “reasonably construe” standard.  These rules, contained in the restaurant’s employee handbook, include a “Team Member Relations/Positive Culture” rule requiring employees to interact respectfully with management, an “Online Communications” rule, and a “Team Member Conduct While Representing the Restaurant” rule (just to name a few). And while it is not unusual for a federal court of appeals to remand a matter back to an agency, especially when encountered with a change in policy by said agency, this situation should help instruct employers previously found to have unlawful work rules and currently in the midst of an appeals process.

This decision to remand will also allow the Board to give more guidance to employees and employers alike by actually applying the new standard to different facts and circumstances than those examined in the Boeing case. Yet, the clear guidance we all desire – but at times hardly get – can only happen when John Ring is confirmed by the Senate and gives the Board a 3-2 Republican-majority once again. Until then, any case taken up by a four-member Board evenly divided among party lines will likely end up deadlocked 2-2 and possibly constrain the application of the new Boeing standard.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.