On December 14, 2017, in The Boeing Company, the National Labor Relations Board (NLRB) reversed the 2004 decision in Lutheran Heritage that had created an unworkable standard that had made most employee handbooks across the nation unlawful in the view of the Board. Following on the Lutheran Heritage Village-Livonia case, the Obama Board had expanded—to previously unimagined degrees—its ability to fly-speck company rules and policies. The case also had put both unionized and nonunion employers that maintained employee handbooks directly in the crosshairs of unfair labor practice charges and election objections instigated by  disgruntled unions and employees—as almost every handbook maintained by even the most conscientious employer could be found to have violated the “standard”  created in in Lutheran Heritage.

The Board, in this 3-2 decision, highlighted six separate issues with the Lutheran Heritage standard and summarized that, “Paradoxically, Lutheran Heritage is too simplistic at the same time it is too difficult to apply.” The Boeing decision was not unexpected once the Trump Board was seated, as Chairman Miscimarra had previously stated in his dissent to a 2017 NLRB case, that the Lutheran Heritage standard “defies common sense and is contrary to the Act in numerous respects.” In fact, in his lengthy dissent in William Beaumont Hospital, then-member Miscimarra proposed a balancing test in place of this speculative and highly subjective test  based on whether Board members sitting in Washington imagined employees might interpret a handbook rule as “chilling” Section 7 rights even in the absence of record evidence.

Indeed, the reversal of Lutheran Heritage’s unworkable standard had been predicted in a recent U.S. Chamber of Commerce publication. In addition, Ogletree Deakins had filed an amicus brief urging reversal in the Boeing case on behalf of the National Association of Manufacturers.

Instead of adhering to Lutheran Heritage’s standard, the Board reversed and adopted a balancing test that comports with its obligation to weigh the employer’s justification for a rule or policy against its interference on activity protected by the National Labor Relations Act. 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.” [Emphasis in original.]

Using its new standard, the Board reversed an administrative law judge’s finding that Boeing’s no-camera rule violated the NLRA. According to the Board, the employer’s legitimate business justification to protect proprietary information and national security interests outweighed any potential infringement on Section 7 rights of its employees. The Board provided further guidance by establishing three categories for how it will analyze employer rules moving forward:

  • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.”
  • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
  • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.”


This decision hopefully signals the beginning of the Trump Board bringing some sense of balance and practicality to its enforcement of the NLRA.


Browse More Insights

Practice Group

Employment Law

Ogletree Deakins’ employment lawyers are experienced in all aspects of employment law, from day-to-day advice to complex employment litigation.

Learn more
Street protest against war in Ukraine in town square.
Practice Group

Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

Learn more
Beautiful modern hotel room and suitcase
Industry Group


Ogletree Deakins’ Hospitality practice is as diverse as the clients we serve. From bed-and-breakfast inns to destination resorts, and from fast casual restaurants to fine dining concepts, we understand our clients’ needs and challenges and share their commitment to providing exceptional quality, service, and value.

Learn more
Inside a large shopping mall in Almaty
Industry Group


Ogletree Deakins is a retail industry leader with clients ranging from brick-and-mortar retailers to online merchants, and small businesses to Fortune 500 corporations. We represent companies in a range of retail sectors, including but not limited to: discount stores, department stores, luxury retailers, home goods and specialty stores, home improvement centers, grocers, pharmacies, online retailers…

Learn more

Sign up to receive emails about new developments and upcoming programs.

Sign Up Now