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Goldberg Kohn Principal Jon E. Klinghoffer is quoted in "Clear Skies For Employers As NLRB's Boeing Test Takes Off," published in the Oct. 18, 2019, edition of Law360.

The article concerns a recent National Labor Relations Board ruling applying the agency's revamped Boeing test for analyzing workplace rules. It is the first of what will likely be many decisions giving more leeway for employers to control their workforce.

A three-member majority said food supplier LA Specialty Produce Co.'s rules limiting workers' comments to reporters and blocking them from sharing certain information about clients are legal despite a union's claims the rules encroach on workers' National Labor Relations Act rights. It offers the first glimpse at how the agency's Republican leadership will balance workers' rights and their employers' interests. It's an approach likely to please businesses and their advocates.

"Everything in labor law is relatively temporary, and sometimes it's just better to take a conservative approach if you're an employer and you have a handbook that can survive an administration regardless of its views."
~ Jon Klinghoffer

The Boeing test — named as such because the board handed it down in a labor dispute involving the jet maker — replaced a 2004 test that said seemingly neutral workplace rules are illegal if workers would "reasonably construe" them to limit NLRA rights, such as those empowering workers to form unions or join together to voice complaints. Under President Barack Obama, the board applied that earlier test to strike down a variety of rules, including bans on employees making recordings of the workplace and criticizing their employers on social media.

The Boeing test takes a more employer-friendly approach, directing the administrative judges who resolve disputes to look at whether a reasonable employee would interpret a rule as restricting their rights. If the rule is found to brush up against the NLRA's protections, then the judge must weigh its effects on workers' rights against the employer's reasons for maintaining the rule. If the latter outweighs the former, the rule stands.

The board in LA Specialty Produce applied the Boeing test to two rules a Teamsters unit alleged infringed workers' rights: a "confidentiality rule" making workers keep certain employer secrets and a "media contact rule" limiting what workers can say to reporters.

Among other things, the company's confidentiality rule makes workers protect client and vendor lists, which a board judge said workers may understand to block them from exercising their NLRA right to appeal to customers in labor disputes. But the rule only bars workers from sharing these lists, not from speaking to the businesses named on them, the majority said.

And while the media contact rule says employees "cannot provide … any information" when approached by members of the media, this is in the context of designating the company President Michael Glick as its sole spokesperson, the majority said. As such, reasonable workers would not read it to bar them from exercising their right to press labor concerns to the media, the majority said.

Even if the board's Republican majority uses Boeing to set more employer-friendly precedent on workplace rules, the shift may be short-lived, said Mr. Klinghoffer. "The board is traditionally composed of three members from the president's party and two from the opposing party, so case law tends to shift dramatically when the White House changes hands. As such, employers shouldn't overreach by trying to impose rules that go beyond their business needs," he said.

"Everything in labor law is relatively temporary, and sometimes it's just better to take a conservative approach if you're an employer, and you have a handbook that can survive an administration regardless of its views," he said.