Stericycle, Inc.

372 NLRB No. 113 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Stericycle, Inc. and Teamsters Local 628. Cases 04– CA–137660, 04–CA–145466, 04–CA–158277, and 04–CA–160621 August 2, 2023 DECISION AND ORDER REMANDING BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, WILCOX, AND PROUTY Today, after previously issuing a notice and invitation for briefing, we adopt a new legal standard to decide whether an employer’s work rule that does not expressly restrict employees’ protected concerted activity under Section 7 of the National Labor Relations Act (Act) is facially unlawful under Section 8(a)(1) of the Act. Here, an administrative law judge found that the Respondent violated Section 8(a)(1) by maintaining certain rules for its employees that addressed personal conduct, conflicts of interest, and confidentiality of harassment com- plaints.1 In making those findings, the judge applied the standard established by a divided Board in Boeing Co., 365 NLRB No. 154 (2017), which sua sponte reversed the standard announced in Lutheran Heritage Village- Livonia, 343 NLRB 646 (2004). Given the ubiquity of work rules and the importance of ensuring that such rules do not operate to undermine em- ployees’ exercise of their rights under the Act, we sought public input on the standard adopted in Boeing, then pur- portedly clarified in LA Specialty Produce Co., 368 NLRB No. 93 (2019), and applied in subsequent cases where the Board found that several types of work rules were categorically lawful for employers to maintain, es- sentially without regard to how the particular rules were drafted. Accordingly, we invited the parties and interested ami- ci to address the following questions: 1. Should the Board continue to adhere to the standard adopted in Boeing Co., 365 NLRB No. 154 (2017), and revised in LA Specialty Produce Co., 368 NLRB No. 93 (2019)? 2. In what respects, if any, should the Board modify existing law addressing the maintenance of employer work rules to better ensure that: 1 On September 4, 2020, Administrative Law Judge Michael A. Rosas issued the attached supplemental decision. The Respondent, the General Counsel, and the Charging Party each filed exceptions and a supporting brief, and the General Counsel and the Charging Party each filed an answering brief. On May 6, 2021, the National Labor Rela- tions Board granted counsel for the Acting General Counsel’s Motion to Withdraw Exceptions Three through Nine. The Board has consid- ered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order Remanding. a. the Board interprets work rules in a way that accounts for the economic dependence of em- ployees on their employers and the related poten- tial for a work rule to chill the exercise of Section 7 rights by employees; b. the Board properly allocates the burden of proof in cases challenging an employer’s mainte- nance of a work rule under Section 8(a)(1); and c. the Board appropriately balances employees’ rights under Section 7 and employers’ legitimate business interests? 3. Should the Board continue to hold that certain cate- gories of work rules—such as investigative- confidentiality rules as addressed in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), non-disparagement rules as addressed in Motor City Pawn Brokers, 369 NLRB No. 132 (2020), and rules prohibiting outside employment as addressed in Ni- cholson Terminal & Dock Co., 369 NLRB No. 147 (2020), and G&E Real Estate Management Services d/b/a Newmark Grubb Knight Frank, 369 NLRB No. 121 (2020)—are always lawful to maintain? Stericycle, Inc., 371 NLRB No. 48, slip op. at 1–2 (2022). Having carefully considered the briefs of the parties and amici, as well as the Board’s past experiences re- garding these issues and the view of our dissenting col- league, we have decided to adopt an approach to as- sessing facial challenges to employer work rules under Section 8(a)(1) that builds on and revises the Lutheran Heritage standard. As we will explain, the primary prob- lem with the standard from Boeing and LA Specialty Produce is that it permits employers to adopt overbroad work rules that chill employees’ exercise of their rights under Section 7 of the Act, which include the “right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively . . . , and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection.” 29 U.S.C. § 157. To begin, the current standard fails to account for the economic dependency of employees on their employers. Because employees are typically (and understandably) anxious to avoid discharge or discipline, they are reason- ably inclined both to construe an ambiguous work rule to prohibit statutorily protected activities and to avoid the risk of violating the rule by engaging in such activity. In turn, Boeing gives too little weight to the burden a work rule could impose on employees’ Section 7 rights. At the same time, Boeing’s purported balancing test gives too much weight to employer interests. Crucially, Boeing also condones overbroad work rules by not requiring the party drafting the work rules—the employer—to narrow- ly tailor its rules to only promote its legitimate and sub- stantial business interests while avoiding burdening em- ployee rights. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The standard we adopt today remedies these funda- mental defects. We adopt a modified version of the basic framework set forth in Lutheran Heritage, which recog- nized that overbroad workplace rules and polices may chill employees in the exercise of their Section 7 rights and properly focused the Board’s inquiry on NLRA- protected rights. During the 13 years when the Lutheran Heritage standard was in place, reviewing courts repeat- edly and uncontroversially applied and upheld the stand- ard. No court rejected the Lutheran Heritage standard or held that the Board was, in fact, applying some standard other than the one it articulated.2 However, although Lutheran Heritage implicitly allowed the Board to eval- uate employer interests when considering whether a par- ticular rule was unlawfully overbroad, the standard itself did not clearly address how employer interests factored into the Board’s analysis. The modified standard we adopt today makes explicit that an employer can rebut the presumption that a rule is unlawful by proving that it advances legitimate and substantial business interests 2 See G4S Secure Solutions Inc. v. NLRB, 707 Fed.Appx. 610, 613 fn. 2 (11th Cir. 2017) (mem); Midwest Division–MMC, LLC v. NLRB, 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 v. NLRB, 832 F.3d 351, 362 (D.C. Cir. 2016); Quicken Loans, Inc. v. NLRB, 830 F.3d 542, 545 (D.C. Cir. 2016); Three D, LLC v. NLRB, 629 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- ing that it was misapplied); Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 208-209 (5th Cir. 2014); NLRB v. Arkema, Inc., 710 F.3d 308, 318 (5th Cir. 2013) (approving standard but finding that it was misapplied); NLRB v. Northeastern Land Services, Ltd., 645 F.3d 475, 482 (1st Cir. 2011); Auto Workers v. NLRB, 520 F.3d 192, 197 (2d Cir. 2008); Cintas Corp. v. NLRB, 482 F.3d 463, 467 (D.C. Cir. 2007); 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 Lutheran Heritage standard was uncontroversial in the reviewing courts. To be sure, the dissent correctly observes that several of the cases cited above did not involve a challenge to the Lutheran Heritage standard, but rather the application of that standard. However, the absence of challenges to the Lutheran Heritage standard demonstrates that it enjoyed widespread acceptance. Moreover, notwithstanding the 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 and recognized that it was “prophylactic” and “subject to deference.” As to specific cases, the dissent seeks to distinguish Care One at Madison Avenue, LLC on the ground that it “did not present a rules- maintenance issue at all.” In enforcing the Board’s order, however, the court quoted the Lutheran Heritage standard and concluded that the employer’s posted memo in that case “could reasonably be understood as instituting a new policy of disciplining protected Section 7 activity.” 832 F.3d at 362-363. As to Cintas Corp., the dissent says that case militates “against” our decision. But the dissent concedes that the court applied Lutheran Heritage. In any event, Cintas Corp. supports the standard we announce here, as its conclusion was that “[a] more nar- rowly tailored rule that does not interfere with protected employee activity would be sufficient to accomplish the Company’s presumed interest in protecting confidential information.” 482 F.3d at 470 (em- phasis added). Requiring narrow tailoring is precisely what our stand- ard does and what the dissent rejects. As to Arkema, Inc. and T-Mobile USA, Inc., the dissent says those decisions forbid unreasonable inter- pretations of work rules from being used to deem them unlawful. Lu- theran Heritage did not say otherwise, nor do we contend that it did. that cannot be achieved by a more narrowly tailored rule. Because we overrule Boeing, LA Specialty Produce, and the work rules cases relying on them, including those that placed rules into an “always lawful” category based simply on their subject matter, we reject Boeing’s cate- gorical approach, instead returning to a particularized analysis of specific rules, their language, and the em- ployer interests actually invoked to justify them. As under Lutheran Heritage, our standard requires the General Counsel to prove that a challenged rule has a reasonable tendency to chill employees from exercising their Section 7 rights. We clarify that the Board will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity. Consistent with this per- spective, the employer’s intent in maintaining a rule is immaterial. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden, even if a contrary, nonco- ercive interpretation of the rule is also reasonable. If the General Counsel carries her burden, the rule is presump- tively unlawful, but the employer may rebut that pre- sumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, then the work rule will be found lawful to maintain.3 I. Applying Section 8(a)(1) of the Act, the Board has long and consistently recognized that an employer’s mere maintenance of a work rule may unlawfully inter- fere with, restrain, or coerce employees in the exercise of their Section 7 rights. See Republic Aviation Corp., 51 NLRB 1186, 1187 (1943). The Supreme Court long ago confirmed the Board’s authority to regulate employer work rules, as part of the flexibility the Board requires “to accomplish the dominant purpose” of the Act: to pro- 3 The approach we adopt here applies only to facial challenges to the maintenance of work rules that do not expressly apply to employ- ees’ protected concerted activity. We do not change existing law that an employer’s maintenance of a work rule will be deemed unlawful when it explicitly restricts Sec. 7 activity or was promulgated in re- sponse to union or other protected concerted activity. See, e.g., First American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54, slip op. at 1 fn. 7 (2020) (finding unlawful a “resident-centered” conversa- tion policy promulgated in response to union activity); PAE Applied Technologies, LLC, 367 NLRB No. 105, slip op. at 2 fn. 6 (2019) (find- ing unlawful a rule prohibiting contacting customers concerning union issues because it explicitly restricted Sec. 7 activity). We also do not address the unlawful application of work rules that are lawful to main- tain. Until recently, the Board had long held that an employer’s contin- ued maintenance of a work rule was unlawful when the rule has been applied to restrict the exercise of Sec. 7 rights. But in AT&T Mobility, LLC, the Board reversed that precedent, holding that an employer is not required to rescind a rule that is facially lawful, but has been unlawfully applied. 370 NLRB No. 121, slip op. at 7 (2021). Because this issue is not presented here, we do not revisit it at this time. STERICYCLE, INC. 3 tect “the right of employees to organize for mutual aid without employer interference.” Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945).4 Because overbroad and ambiguous work rules may have a coercive effect on employees, the Board and courts have long acknowl- edged that the regulation of work rules “serves an im- portant prophylactic function: it allows the Board to block rules that might chill the exercise of employees’ rights by cowing the employees into inaction, rather than forcing the Board to ‘wait[] until that chill is manifest,’ and then try to ‘undertake the difficult task of dispelling it.’” Quicken Loans, Inc., supra, 830 F.3d at 549 (quot- ing Flex Frac Logistics, LLC, 358 NLRB 1131, 1132 (2012), enfd. in relevant part 746 F.3d 205 (5th Cir. 2014)). In its decisions carrying out this important function, the Board has grappled with two interrelated issues. The first has been determining the appropriate interpretive principles to apply in evaluating the potentially deleteri- ous impact of a work rule on employees’ exercise of their Section 7 rights. In doing so, the Board regularly has assessed work rules to determine “the reasonably fore- seeable effects of the wording of the rule on the conduct of the employees,” observing that “where the language is ambiguous and may be misinterpreted by the employees in such a way as to cause them to refrain from exercising their statutory rights, then the rule is invalid even if in- terpreted lawfully by the employer in practice.” Solo Cup Co., 144 NLRB 1481, 1481–1482 (1963).5 The second issue for the Board has been determining how to ensure that the rule minimizes any potential impact on employee rights, notwithstanding the legitimate business 4 The federal courts of appeals have consistently recognized that an 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. NLRB, 851 F.3d 35, 40–41 (D.C. Cir. 2017); Northeastern Land Ser- vices v. NLRB, 560 F.3d 36, 42–44 (1st Cir. 2009); Beverly Health & Rehabilitation Services, Inc., 297 F.3d 468, 478 (6th Cir. 2002). The Board has never deviated from this principle, even as it has changed its approach to determining when a rule is unlawful to maintain. 5 See also, e.g., Hyland Machine Co., 210 NLRB 1063, 1071 (1974) (“[T]he ambiguous language might be interpreted by workers in such a way as to cause them to refrain from exercising their statutory rights, hence the rule is invalid even if [r]espondent intended or interpreted it privately otherwise.”); MPL, Inc., 163 NLRB 952, 955 (1967) (“[T]he [r]espondent’s broad no-solicitation rule impinges upon the rights of its employees and constitutes an unreasonable impediment to self- organization. Moreover, even assuming that the rule was not intended by [r]espondent to be, and was not, in fact, applied to prohibit union solicitation during nonworking time, the reasonable, foreseeable effect of the rule as worded is capable of such interpretation by employees, and thus would tend to cause them to refrain from exercising their statutory rights.”); Pueblo Supermarkets, Inc., 156 NLRB 654, 656 (1966) (“The promulgation of an unlawfully phrased rule has an inhibi- tory effect upon employees’ exercise of their statutory rights, regardless of the innocence of purpose for the rule or the undisclosed limitations placed upon its use and application.”). interests that the employer may be trying to advance by maintaining its rule.6 Over the past nearly 25 years, the Board has attempted to articulate and consistently apply a generally applicable test under Section 8(a)(1) for assessing facial challenges to work rules. For almost half that time, the Lutheran Heritage standard provided the interpretive principles relevant to assessing the impact of a given rule on em- ployees’ rights. We detail the Board’s recent history below with an eye toward explaining why a modified version of the Lutheran Heritage standard is the best approach to evaluating facial challenges to work rules in light of the Board’s experience and long-established stat- utory principles. Our decision today does not disturb the Board’s long-established doctrines covering work rules that address union (or other protected) solicitation, distri- bution, or insignia.7 Consistent with the Board’s deci- sions in both Lutheran Heritage and Boeing, we preserve Board precedent in those areas. A. Lafayette Park The recent history of the Board’s approach to work rules begins with Lafayette Park Hotel, 326 NLRB 824 (1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999). There, a full Board (Chairman Gould and Members Fox, Lieb- man, Hurtgen, and Brame) considered facial challenges to rules defining various types of “unacceptable con- duct.” 326 NLRB at 824. The Board identified “the appropriate inquiry” as “whether the rules would reason- ably tend to chill employees in the exercise of their Sec- tion 7 rights” and that, where there is a likely chilling effect, “the Board may conclude that their maintenance is an unfair labor practice, even absent evidence of en- 6 In some of its earliest work rules decisions, the Board acknowl- edged that “special circumstances” could justify an employer’s mainte- nance of a work rule that, absent those circumstances, would be unrea- sonable to maintain. See, e.g., Republic Aviation, 51 NLRB at 1187. The Supreme Court likewise acknowledged that the Board’s role in the work rules context entails “working out an adjustment between the undisputed right of self-organization assured to employees under the [] Act and the equally undisputed right of employers to maintain disci- pline in their establishments.” Republic Aviation, 324 U.S. at 797–798. Even so, while the Board recognized in certain rules cases that employ- er justifications were relevant to the analysis, see, e.g., American Cast Iron Pipe Co., 234 NLRB 1126, 1131 (1978); McDonnell Douglas Corp., 204 NLRB 1110, 1110 (1973), in other cases the Board did not appear to factor employer interests into the analysis, see, e.g., Southern Maryland Hospital Center, 293 NLRB 1209, 1222 (1989). As the Board continued to develop its work-rules jurisprudence, some specific holdings emerged to govern particular types of rules. For instance, absent special circumstances, a rule banning solicitation by employees on the employer’s property during nonworking time is facially unlaw- ful, Republic Aviation, 51 NLRB at 1187; absent special circumstances, a rule banning the distribution of literature by employees on the em- ployer’s property during nonworking time and in nonworking areas is facially unlawful, Stoddard-Quirk Mfg. Co., 138 NLRB 615, 621 (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- ferred to the Supreme Court’s decision in Republic Avia- tion, quoting its admonition that assessing the challenged rules involves “working out an adjustment between the undisputed right of self-organization assured to employ- ees under the [] Act and the equally undisputed right of employers to maintain discipline in their establishments.” Id. (quoting 324 U.S. at 797–798). Member Hurtgen, disagreeing with the majority, expressed his view that “[i]f a rule reasonably chills the exercise of Sec. 7 rights, it can nonetheless be lawful if it is justified by significant employer interests.” Lafayette Park, 326 NLRB at 825 fn. 5. In analyzing the challenged rules’ impact on employ- ees under its announced standard, the Lafayette Park Board did consider the employer’s interests in maintain- ing its rules, if not in the manner Member Hurtgen sought. See id. at 825–827, 829. For instance, when assessing a rule forbidding employees from making per- sonal use of certain of the employer’s facilities, the Board noted the “legitimate business reasons for such a rule” and its view that “employees would recognize the rule for its legitimate purpose.” Id. at 827. Similarly, when assessing the employer’s rule forbidding fraterniza- tion between employees and customers, the Board noted that employees “would recognize the legitimate business reasons for which such a rule was promulgated, and would not reasonably believe that it reaches Section 7 activity.” Id. (internal footnote omitted). Although the Board considered the employer’s interests (as effectively communicated to employees), it did so in the course of interpreting a rule and assessing its potential chilling effect on employees. The Lafayette Park Board was divided, too, in how to correctly apply the announced standard to particular rules. In a partial dissent, Members Fox and Liebman thought the majority merely paid “lip service” to the ap- plicable interpretive principles in upholding rules that, in their view, had “the likely effect of chilling Section 7 activity.” Id. at 830. In response, Chairman Gould char- acterized their dissenting approach as one that improper- ly “pars[ed] out certain words and create[ed] theoretical definitions” for rules “that differ from the obvious ones.” Id. He asserted that the Board should not “focus[] on whether any language in the rules could theoretically encompass Section 7 activity” but, instead, should focus on “whether a reasonable employee could believe that the rule prohibits protected activity.” Id. B. Lutheran Heritage A few years later, in another full-Board decision, Lu- theran Heritage Village-Livonia, 343 NLRB 646 (2004), the majority (Chairman Battista and Members Schaumber and Meisburg) construed Lafayette Park to mean that the relevant inquiry “begins with the issue of whether the rule explicitly restricts activities protected by Section 7.” Id. at 646 (emphasis in original). If it does not, a violation “is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Id. at 647. Under the first of these prongs, the majority instructed that the Board “must refrain from reading particular phrases in isolation,” “must not pre- sume” that a rule will cause “improper interference with employee rights,” and should not conclude “that a rea- sonable employee would read [a] rule to apply to [Sec- tion 7] activity simply because the rule could be inter- preted that way.” Id. at 646–647 (emphasis in original). In an effort to refine the standard applied in Lafayette Park, the Board in Lutheran Heritage observed that it was not enough to establish a violation of Section 8(a)(1) merely because a rule “could conceivably be read to cov- er Section 7 activity,” but in referring to how a reasona- ble employee “would read” the rule, the majority did not expressly hold that the coercive meaning must be the only reasonable interpretation of the rule or the most rea- sonable interpretation. Id. at 647 (emphasis added). The Lutheran Heritage Board acknowledged that the rules it was scrutinizing “serve legitimate business purposes” and that reasonable employees “would realize the lawful purpose of the challenged rules”—thereby suggesting that such considerations had informed its conclusions— but again the Lutheran Heritage majority did not clearly explain how employer interests factored into the analysis. See id. at 647–648. Finally, Lutheran Heritage rejected a categorical approach to work rules. The majority acknowledged the case-by-case nature of the Board’s work rules decisions, noting that it did “not consider it necessary or appropriate to decide in this case what rules in a future hypothetical case would be unlawful.” Id. at 648. In dissent, Members Liebman and Walsh raised the is- sue of balancing. They argued that in Lafayette Park the Board had recognized that “determining the lawfulness of an employer’s work rules requires balancing compet- ing interests,” and they accused the majority of “[i]gnoring the employees’ side of the balance.” Id. at 650. The dissenters agreed that employers have legiti- mate business interests that warrant protection through the maintenance of work rules but contended that the employer must do so “subject to the requirement that employers articulate those rules with sufficient specifici- ty that they do not impinge on employees’ free exercise of Section 7 rights.” Id. at 652. Lutheran Heritage, then, again demonstrated the Board’s ongoing efforts to develop a standard that grap- pled with the two key questions posed in work rules cas- es: (1) how to interpret a rule and (2) whether and how employer interests factor into the analysis. STERICYCLE, INC. 5 C. Aftermath of Lutheran Heritage Following Lutheran Heritage, the Board decided many work rules cases, and reviewing courts consistently ap- plied and upheld the standard.8 However, there was some degree of confusion and disagreement about some aspects of its proper application, in particular whether, and if so, how, to consider an employer’s reasons for maintaining a challenged rule. For instance, in Flagstaff Medical Center, 357 NLRB 659 (2011), enfd. in part 715 F.3d 928 (D.C. Cir. 2013), a panel majority found a hospital employer’s rule re- stricting employees’ use of cameras lawful, in part be- cause of the employer’s “significant interest” in having the rule to prevent the disclosure of patient health infor- mation. Id. at 663. The majority there viewed the em- ployer’s interest in maintaining the rule relevant to the analysis insofar as it informed the majority’s assessment that reasonable employees would recognize that employ- er interest and view the rule “as a legitimate means of protecting the privacy of patients and their hospital sur- roundings, not as a prohibition of protected activity.” Id. But in a separate decision issued on the same day, a different panel majority assessed an employer’s mainte- nance of certain work rules and made no mention of the employer’s interests. Instead, the majority determined that the “only question” relevant was whether the em- ployees “would reasonably construe the . . . rules to pro- hibit Section 7 activity” and did not mention the employ- er’s interests for maintaining the rules as part of its anal- ysis resolving that question. Hyundai America Shipping Agency, Inc., 357 NLRB 860, 860–862 (2011), enfd. in part 805 F.3d 309 (D.C. Cir. 2015). Courts occasionally regarded the Board’s implicit approach to addressing employer interests under Lutheran Heritage as placing a rebuttal burden on the employer, once it was established that a rule had a reasonable tendency to chill employees’ exercise of Section 7 rights.9 D. William Beaumont In William Beaumont Hospital, 363 NLRB 1543 (2016), a majority consisting of then-Member McFerran and Member Hirozawa struck down a hospital employ- er’s rule prohibiting conduct that “impedes harmonious interactions and relationships” because employees would reasonably understand that it could encompass interac- tions protected by Section 7. Id. at 1544. The majority also found a rule prohibiting “negative or disparaging comments” unlawful because it would reasonably be 8 See fn. 2, supra. 9 See, e.g., Midwest Division–MMC, LLC, 867 F.3d at 1302 (“Main- taining a rule reasonably likely to chill employees’ Sec[.] 7 activity amounts to an unfair labor practice unless the employer ‘pre- sent[s] a legitimate and substantial business justification for the rule’ that ‘outweigh[s] the adverse effect on the interests of employees.’”) (quoting Hyundai America Shipping Agency, Inc. v. NLRB, 805 F.3d 309, 314 (D.C. Cir. 2015)). construed to prohibit protected expressions of concern about working conditions. Id. In dissent, Member Miscimarra contended that the Lu- theran Heritage standard foreclosed consideration of employers’ justifications for their rules. Id. at 1550. In his view, the “‘reasonably construe’ standard entail[ed] a single-minded consideration of NLRA-protected rights, without taking into account the legitimate justifications of particular policies, rules and handbook provisions.” Id. He advocated a revised approach whereby, in every case challenging an employer’s maintenance of a work rule, the Board would determine “the potential adverse impact of the rule on NLRA-protected activity” and “the legitimate justifications an employer may have for main- taining the rule.” Id. at 1551. Once the competing inter- ests were identified, the Board should then balance them such that “a facially neutral rule should be declared un- lawful only if the justifications are outweighed by the adverse impact on Section 7 activity.” Id. In response, the William Beaumont majority acknowl- edged that assessing work rules was a “difficult area of labor law,” particularly because of “the remarkable num- ber, variety, and detail of employer work rules.” Id. at 1546–1547. But the majority also noted that, in the years since the Board had decided Lutheran Heritage, no court of appeals had rejected the standard that the Board regu- larly applied in work-rules cases. Id. at 1545 & fn. 11.10 The majority further explained that the Lutheran Herit- age standard did, in fact, “take into account employer interests.” Id. at 1546. It did so by leaving employers free to protect their legitimate business interests by adopting more narrowly tailored rules while not infring- ing on Section 7 rights. The majority noted that when the Board found that a rule was not unlawfully over- broad, “it [was] typically because the rule [was] tailored such that the employer’s legitimate business interest in maintaining the rule [was] sufficiently apparent to a rea- sonable employee.” Id. E. Boeing and LA Specialty Produce Less than 2 years later, without being asked and with- out seeking any public input, a newly constituted Board effectively incorporated the William Beaumont dissent into the majority opinion in Boeing Co., 365 NLRB No. 154 (2017).11 The Boeing majority (Chairman Miscimar- ra and Members Kaplan and Emanuel) held that, when deciding the lawfulness of maintaining a “facially neu- tral” work rule, the Board “will evaluate two things: (i) 10 As representative examples, the majority cited decisions from the Fifth, Second, and District of Columbia Circuits, respectively: Flex Frac Logistics, LLC, supra, 746 F.3d at 209; International Union, UAW v. NLRB, 520 F.3d 192, 197 (2d Cir. 2008); Cintas Corp., supra, 482 F.3d at 467–470; and Guardsmark, LLC, supra, 475 F.3d at 378–380. 11 The Boeing majority preserved the other, separate bases from Lu- theran Heritage for finding a work rule unlawful: namely, when the rule explicitly restricts Sec. 7 activity, is promulgated in response to union activity, or has been applied to restrict Sec. 7 activity. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.” Id., slip op. at 3 (emphasis in original). Those two factors would be balanced against each other. Ac- cording to the majority, the Lutheran Heritage standard did not permit the Board to consider an employer’s legit- imate business reasons for maintaining a rule; to distin- guish between more and less important Section 7 inter- ests; to differentiate among industries, work settings, or specific circumstances reflected in a given rule; or to produce consistent rulings in work-rules cases. Id., slip op. at 2. And the majority claimed that past Board deci- sions specifying criteria for assessing the lawfulness of specific types of rules—like rules concerning workplace solicitation and distribution of literature—comport with its standard, which permitted accommodating employer interests, but not under Lutheran Heritage, which it as- serted did not. Id., slip op. at 8. The majority also created a categorical classification system for evaluating rules under its standard. Id., slip op. at 3–4. In “Category 1”—rules that were always law- ful to maintain—it would put rules that, as a type, did not interfere with Section 7 rights and rules where the ad- verse impacts on Section 7 rights were outweighed by justifications associated with such rules. Id. In “Catego- ry 2”—rules that were sometimes lawful to maintain—it would put rules that “warrant scrutiny in each case.” Id., slip op. at 4. And in “Category 3”—rules that were al- ways unlawful to maintain—it would put rules that, giv- en their impact on protected activity, could never be jus- tified by an employer. Id. The purported intent of this categorical approach was to “provide far greater clarity and certainty” for regulated parties. Id. Applying its new standard, the Boeing majority upheld a rule maintained by the employer, a manufacturer of military and commercial aircraft, restricting the use of cameras in the workplace because any “adverse impact” on Section 7 rights was “comparatively slight” and was “outweighed by substantial and important justifications associated with Boeing’s maintenance of the no-camera rule.” Id., slip op. at 17. Without further explanation, it deemed all rules of that type always lawful for employ- ers to maintain no matter the circumstances. Id. Re- markably, the Boeing Board also designated all rules “requiring employees to abide by basic standards of ci- vility”—of the sort at issue in William Beaumont, but not at issue in Boeing—as always lawful. Id., slip op. at 15. Then-Member McFerran and Member Pearce both dis- sented, expressing similar views. Member McFerran asserted that, as the Board had recently explained in Wil- liam Beaumont, the standard under Lutheran Heritage did allow for consideration of an employer’s legitimate business justifications for its work rules. Id., slip op. at 35–36. But Member McFerran contended that the major- ity’s approach here went too far, privileging an employ- er’s interests over the rights of employees, who, because of their economic dependence on employers, reasonably take a cautious approach when interpreting work rules for fear of running afoul of a rule whose scope is unclear. Id., slip op. at 38. Member McFerran also criticized the majority’s assertion that its approach would provide more “certainty and clarity,” as she noted that it failed to identify which Section 7 rights and which employer in- terests are entitled to more or less weight in its balancing. Id., slip op. at 38–39. As to the majority’s categorical approach, Member McFerran noted that designating a type of rule as always lawful to maintain improperly forgoes particularized scrutiny of a similar rule in an altogether different work- place by finding it lawful without addressing what par- ticular Section 7 rights are at stake, what justifications an employer might actually offer for its rule, and what in- dustry or work setting is involved. Id., slip op. at 39. Member Pearce expressed similar criticisms. Id, slip op. at 23–29. He found “particularly troubling” the ma- jority’s designation of civility rules as always lawful to maintain. He pointed out that no civility rules were at issue in the case and that, in any event, civility rules threatened to chill the sort of heated expression that was not uncommon when employees engage in Section 7 activity. Id., slip op. at 27–28. Less than 2 years later, in LA Specialty Produce Co., 368 NLRB No. 93 (2019), a Board majority (Chairman Ring and Members Kaplan and Emanuel) observed that Boeing needed to be buttressed with some “points of clarification.” Id., slip op. at 2. One ostensible clarifica- tion addressed how rules should be interpreted. The ma- jority asserted that the reasonable employee does “not view every employer policy through the prism of the NLRA,” such that “a challenged rule may not be found unlawful merely because it could be interpreted, under some hypothetical scenario, as potentially limiting some type of Section 7 activity.” Id. A second ostensible clar- ification addressed the burden of proof to demonstrate a work rule’s impact on Section 7 rights, holding that “it is the General Counsel’s initial burden in all cases to prove that a facially neutral rule would in context be interpreted by a reasonable employee . . . to potentially interfere with the exercise of Section 7 rights.” Id. The majority also attempted to clarify the categorical approach by ex- plaining that a rule should be placed in Category 1, and thus deemed always lawful to maintain, when the “gen- eral” employer interests in maintaining such a rule out- weigh the potential impact on the exercise of Section 7 rights. Id., slip op. at 3. Member McFerran dissented. As a threshold matter, she summarized what she deemed to be the primary de- fects in the reasoning of the Boeing Board. Those in- cluded (1) that the Board, in rejecting Lutheran Heritage and announcing a new standard, did so sua sponte and without public input; (2) that the standard under Luther- an Heritage already permitted the Board to consider an STERICYCLE, INC. 7 employer’s legitimate business justifications for its work rules; (3) that the Boeing standard fails to properly assess rules from the perspective of a reasonable employee be- cause it does not consider the economic dependence of employees on employers, which increases the chilling potential of ambiguous rules; and (4) that Boeing’s cate- gorical approach dispenses with individualized scrutiny for rules by ignoring their wording, whether they were narrowly tailored, and their context. Id., slip op. at 8–9. Member McFerran also disagreed with the clarifica- tions that LA Specialty Produce purported to make to Boeing. Specifically, she argued that the majority’s de- scription of a reasonable employee ignored employees’ economic dependence on the employer and the resulting reasonable tendency to interpret work rules as coercive, even where a disinterested person would not. Id., slip op. at 9–10. She also faulted the majority’s requirement that the General Counsel must prove that a work rule “would in context be interpreted . . . to potentially interfere with the exercise of Section 7 rights” as effectively (but not explicitly) requiring a showing that the coercive interpre- tation of a rule is the only reasonable interpretation. Id., slip op. at 10–11. As for the balancing test, Member McFerran noted that the majority failed to explain which party has the burden of proof with respect to the balanc- ing, and that its endorsement of a “general” balancing approach eliminated consideration of the language of a particular rule or the requirement of narrow tailoring. Id., slip op. at 11–12. F. Aftermath of Boeing and LA Specialty Produce Since Boeing was decided, both before and after the Board’s attempted clarification of it in LA Specialty Pro- duce, the Board has applied its new standard in a number of cases. The Board has usually found work rules lawful to maintain and, generally, has categorically deemed all similar rules to be lawful to maintain, no matter the spe- cific wording of any particular rule or the specific work- place context in which they are maintained.12 12 For example, the Board has applied Boeing to find the following types of rules categorically lawful for all employers to maintain: AT&T Mobility, LLC, 370 NLRB No. 121, slip op. at 3–4 (no-recording rules); Medic Ambulance Service, 370 NLRB No. 65, slip op. at 2–4 & fns. 7, 9–11 (2021) (confidentiality rules for proprietary information and so- cial media restrictions); Bemis Co., 370 NLRB No. 7, slip op. at 2–3 & fn. 8 (2020) (civility rules concerning social media); Nicholson Termi- nal & Dock Co., 369 NLRB No. 147, slip op. at 2–3 (rules prohibiting strike activity and outside employment); Motor City Pawn Brokers Inc., 369 NLRB No. 132, slip op. at 7 & fns. 17–18 (nondisparagement rules and rules restricting employee use of the internet and social media); Newmark Grubb Knight Frank, 369 NLRB No. 121, slip op. at 2–3 (rules prohibiting outside employment, providing employee references, and use of employer property for personal benefit); Verizon Wireless, 369 NLRB No. 108, slip op. at 4–5 (2020) (rules allowing the search of employee property, including vehicles, on employer premises); Cott Beverages, Inc., 369 NLRB No. 82, slip op. at 3–4 fn. 13 (2020) (rules prohibiting cell phones in work areas); Maine Coast Regional Health Facilities d/b/a Maine Coast Memorial Hospital, 369 NLRB No. 51, slip op. at 2–3 (2020) (rules prohibiting communicating with the media concerning non-NLRA related subjects), enfd. on other grounds 999 II. Having considered the valuable perspectives of the parties and amici in response to our Notice and Invitation to File Briefs (NIFB),13 as well as the Board’s past expe- rience and the views of our dissenting colleague, we have decided the better approach is a modified version of the framework set forth in Lutheran Heritage for evaluating facial challenges to employer work rules that do not ex- plicitly restrict Section 7 activity by employees and were not promulgated in response to such activity, as clarified herein. As explained, the key issues presented are: (1) defining the interpretive principles to apply to discern when work rules have a reasonable tendency to chill em- ployees’ exercise of their statutory rights and (2) working out the proper adjustment between protecting employee rights and accommodating employers’ legitimate and substantial business interests in maintaining their rules. Although Lafayette Park and Lutheran Heritage estab- lished the Board’s proper interpretive focus—the per- spective of a reasonable employee subject to the rule— they did not sufficiently (or clearly) articulate how em- ployers’ interests fit into the analysis. While Boeing and LA Specialty Produce, in turn, appropriately recognized that employer interests should factor into the Board’s F.3d 1 (1st Cir. 2021); Argos USA LLC d/b/a Argos Ready Mix LLC, 369 NLRB No. 26, slip op. at 4 (2020) (rules prohibiting cell phones in commercial vehicles); Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144, slip op. at 8–9 (investigative confidentiality rules); Briad Wenco, LLC d/b/a Wendy’s Restaurant, 368 NLRB No. 72, slip op. at 2 (2019) (rules mandating arbitration of employment-related disputes with savings clauses preserving access to the Board). The Board has applied Boeing to find the following types of rules categorically unlawful for all employers to maintain: Tesla, Inc., 370 NLRB No. 101, slip op. at 5 (2021) (rules prohibiting communications with the media); 20/20 Communications, Inc., 369 NLRB No. 119, slip op. at 3–4 (2020) (rules prohibiting recovery of Board-ordered back- pay); First American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54, slip op. at 1–2 & fn. 9 (rules prohibiting discussion of wages and benefits); Union Tank Car Co., 369 NLRB No. 120, slip op. at 3 (2020) (non-disparagement rules extending to conversations among employees); Newmark Grubb Knight Frank, 369 NLRB No. 121, slip op. at 4 (confidentiality rules covering employee handbooks); Cedars- Sinai Medical Center, 368 NLRB No. 83, slip op. at 3 & fn. 6 (2019) (rules mandating arbitration as the exclusive forum for resolving NLRA claims). 13 In response to the NIFB, briefs were filed by the General Counsel, the Respondent, Stericycle, and the Charging Party, Teamsters Local 628, and the following amici: a group consisting of the Associated Builders and Contractors, Coalition for a Democratic Work Place, Council on Labor Law Equality, National Association of Manufactur- ers, National Association of Wholesaler-Distributors, and National Retail Federation; a group consisting of the Arkansas State Chamber of Commerce, Little Rock Regional Chamber of Commerce, Springdale Chamber of Commerce, Associated Builders & Contractors of Arkan- sas, and Arkansas Hospitality Association; the Center for Workplace Compliance; the HR Policy Association and Retail Litigation Center; the Chamber of Commerce of the United States of America; the Ameri- can Federation of Labor and Congress of Industrial Organization; the American Postal Workers Union; the Communications Workers of America; the International Brotherhood of Electrical Workers; the International Union of Operating Engineers; and the Service Employees International Union. 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD analysis, they adopted interpretive principles that failed to reflect the true coercive potential of work rules. In addition, those decisions gave too little weight to em- ployees’ Section 7 rights and too much weight to em- ployer interests, in particular by failing to require em- ployers to narrowly tailor their work rules to minimize as much as reasonably possible, if not altogether eliminate, any infringement of employee rights. The approach we adopt today seeks to preserve the in- sights of the Board’s prior decisions while addressing their shortcomings. Given the wide range of work rules, the varying language they use, and the many different employment contexts in which they arise, we do not ex- pect our new standard to provide complete certainty and predictability in this area of the law. That abstract goal—as the Board’s experience under Boeing sug- gests—could be achieved only by arbitrarily expanding the universe of work rules deemed always lawful to maintain, at the obvious expense to employees’ ability to exercise the rights guaranteed to them by the Act. Our approach is focused on furthering what the Su- preme Court many decades ago defined as the “dominant purpose” of the Act: protecting “the right of employees to organize for mutual aid without employer interfer- ence.” Republic Aviation, 324 U.S. at 798. In the con- text of this case, achieving the Act’s purpose means en- suring that the Board does not condone employer work rules that chill employees’ exercise of their statutory rights for fear of discipline or discharge if they violate them. The potential for intimidation is great precisely because of what the Supreme Court has described as “the economic dependence of the employees on their employ- ers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). This fact of workplace life should be reflected in the Board’s treatment of work rules under Section 8(a)(1) of the Act, just as the Supreme Court has required with respect to the analysis of employers’ argu- ably coercive statements to employees. But “equally undisputed,” as the Supreme Court has also observed, is the “right of employers to maintain dis- cipline in their establishments” and otherwise protect their legitimate and substantial business interests by reg- ulating employees’ workplace conduct. Republic Avia- tion, 324 U.S. at 798. Accordingly, in the work-rules context, as in other situations governed by Section 8(a)(1) of the Act, the Board must fulfill its duty to pro- tect employees’ Section 7 rights while also considering employers’ legitimate and substantial business interests. As we will explain, our new standard gives employers the necessary leeway to maintain rules of their own choosing to advance legitimate and substantial business interests. They simply need to narrowly tailor those rules to significantly minimize, if not altogether eliminate, their coercive potential. If employers do so, their rules will be lawful to maintain. A. It has long been established that the test for evaluating whether an employer’s conduct or statements violate Section 8(a)(1) of the Act is whether they have a reason- able tendency to interfere with, restrain, or coerce em- ployees who may engage in activities protected by Sec- tion 7. American Freightways Co., 124 NLRB 146, 147 (1959). The General Counsel, of course, has the burden of establishing a violation of the Act. As we now ex- plain, our initial focus in the work-rules context is on whether the General Counsel has proven that a rule has a reasonable tendency to interfere with, restrain, or coerce employees who contemplate engaging in protected ac- tivity. To discern that tendency, the Board—as in all other Section 8(a)(1) contexts—appropriately “view[s] employer statements ‘from the standpoint of employees over whom the employer has a measure of economic power.’” Mesker Door, Inc., 357 NLRB 591, 595 (2011) (quoting Henry I. Siegel Co. v. NLRB, 417 F.2d 1206, 1214 (6th Cir. 1969)), overruled on other grounds by Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 7 (2019). Interpreting a work rule from the perspective of the economically dependent employee who contemplates engaging in Section 7 activity is consistent with work- place reality—employees ordinarily do not wish to risk their jobs by violating their employers’ rules—and with the employee-protective purposes of the Act.14 As sug- gested, this frame of reference is entirely consistent with, and arguably compelled by, the Supreme Court’s deci- sion in Gissel, which considered whether certain state- ments made by an employer to his employees violated Section 8(a)(1). 395 U.S. at 616–620. Addressing the employer’s argument that its statements were protected by Section 8(c) of the Act, the Gissel Court explained that “an employer’s rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by § 8(a)(1).” Id. at 617. The Court reasoned that “any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.” Id. These “obvious principles,” in the Court’s words, id., should be central to our analysis when the Board evalu- ates a work rule. Accordingly, in interpreting a rule, the Board will take the perspective of the “economically 14 Quicken Loans, Inc., supra, 830 F.3d at 549. In Quicken Loans, the District of Columbia Circuit further observed that employees cannot be expected “to hazard potentially career-imperiling guesses about whether the Employment Agreement—that [their employer] unilateral- ly drafted and required them to sign—means what it says and says what it means.” Id. at 550. STERICYCLE, INC. 9 dependent employee” who contemplates engaging in Section 7 activity. See id.15 Such an employee is readily inclined to avoid violating a rule, and so readily inclined to interpret it more broadly to restrict or prohibit Section 7 activity than a disinterested observer might. Being discharged might mean—to take just two very real ex- amples—being unable to pay rent or put food on the ta- ble. For purposes of the Act, then, the coercive potential of a work rule is inextricably intertwined with the vul- nerable position of employees. By explicitly incorporating the perspective of the eco- nomically dependent employee into our analysis, we adopt an important interpretive principle that sometimes explicitly factored into the Board’s analysis under Lafa- yette Park and Lutheran Heritage. See, e.g., Whole Foods Market, Inc., 363 NLRB 800, 803 fn. 11 (2015) (applying those cases and incorporating the perspective of the economically dependent employee), enfd. 691 Fed.Appx. 49 (2d Cir. 2017). This principle is consistent with the Board’s long-established practice of construing any ambiguity in a work rule against the employer as the drafter of the rule. See, e.g., Lafayette Park, 326 NLRB at 828 & fn. 22 (citing Norris/O’Bannon, 307 NLRB 1236, 1245 (1992) (in turn citing Paceco, A Div. of Fruehauf, 237 NLRB 399, 400 fn. 8 (1978))).16 Despite stating that work rules should be interpreted from “the employees’ perspective,” 365 NLRB No. 154, slip op. at 16, the Boeing Board did not base this per- spective on employees’ economic dependence. And, in turn, the Board in LA Specialty Produce obfuscated the issue by asserting—in response to the dissent’s view that rules should be assessed from the perspective of an eco- nomically dependent employee—that “a reasonable em- ployee does not presume a Section 7 violation lurks around every corner.” 368 NLRB No. 93, slip op. at 7. Such rhetoric obscures the need to promote the policies of the Act, consistent with the Supreme Court’s insight in Gissel about employees’ economic position. For statuto- ry purposes, the relevant reasonable employee is the em- ployee who contemplates engaging in Section 7 activity, because this is the activity that the Act is explicitly in- tended to protect from employer interference. Whether 15 The Respondent contends that Gissel is inapposite because that was “a case dealing only with threats during union organizing cam- paigns,” whereas this case “involves only facially neutral handbook policies.” Stericycle Br. at 15. We reject that contention. Indeed, the Act itself cites the “inequality of bargaining power” between employers and employees as a fundamental premise, and thus it must always fac- tor into our analysis. 29 U.S.C. § 151. Gissel’s description of the economically dependent employee is a general truth about the realities of the employer-employee relationship—and especially applicable in the case of employer-imposed work rules that subject employees to discipline or discharge for violations. See also infra Part IV (respond- ing to dissent). 16 Accordingly, for all of the reasons stated, we reject the Respond- ent’s position that we should not include employees’ economic depend- ence on their employers as part of the relevant interpretive framework. See also infra Part IV (responding to dissent). some hypothetical employee only sometimes, or even never, contemplates Section 7 activity is immaterial. Indeed, if the likelihood of an employee contemplating Section 7 activity were somehow a relevant considera- tion, then even a rule explicitly prohibiting such activity could arguably be lawful (as not having a reasonable tendency, in fact, to interfere with the Section 7 activity of an employee who would not contemplate engaging in such activity).17 It is appropriate, then, for the Board to interpret an ambiguous work rule from the perspective of an employee who contemplates Section 7 activity, but who wishes to avoid the risk of being disciplined or dis- charged for violating the rule. The Board’s goal, of course, is to ensure that employers do not maintain un- lawfully overbroad work rules that have a reasonable tendency to chill employees from exercising their statu- tory rights. In interpreting rules from the perspective of a reasona- ble employee, we believe the Board must also recognize that a typical employee interprets work rules as a layper- son rather than as a lawyer. This uncontroversial princi- ple has long been recognized by the Board, which has sensibly observed that “employees do not generally carry lawbooks to work or apply legal analysis to company rules as do lawyers, and cannot be expected to have the expertise to examine company rules from a legal stand- point.” Ingram Book Co., 315 NLRB 515, 516 fn. 2 (1994). In sum, going forward, the Board will begin its analy- sis by assessing whether the General Counsel has estab- lished that a challenged work rule has a reasonable ten- dency to chill employees from exercising their Section 7 rights. In doing so, the Board will interpret the rule from the perspective of the reasonable employee who is eco- nomically dependent on her employer and thus inclined to interpret an ambiguous rule to prohibit protected activ- ity she would otherwise engage in. The reasonable em- ployee interprets rules as a layperson, not as a lawyer. If an employee could reasonably interpret a rule to restrict or prohibit Section 7 activity, the General Counsel has satisfied her burden and demonstrated that the rule is presumptively unlawful. That is so even if the rule could 17 We thus reject the position of the LA Specialty Board that the Board’s interpretation of work rules should be determined by reference to the perspective of an objectively reasonable employee who is aware of his legal rights but who also in- terprets work rules as they apply to the everydayness of his job. The reasonable employee does not view every employer policy through the prism of the NLRA. 368 NLRB No. 93, slip op. at 2 (quotation marks and citations omit- ted). It may be true that most employees do not view work rules “through the prism” of the Act (their concern, rather, is to avoid disci- pline or discharge), but it is precisely the Board’s function to do so in administering the Act. And it is precisely those situations that do not represent the “everydayness of [the employee’s] job” (i.e., situations where an employee is contemplating Sec. 7 activity) that the Board must be concerned about. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also reasonably be interpreted not to restrict Section 7 rights and even if the employer did not intend for its rule to restrict Section 7 rights. B. For reasons already explained, in some circumstances a violation of Section 8(a)(1) may require more than a showing that an employee could reasonably interpret a work rule to restrict or prohibit Section 7 activity. In such cases, the Board must still evaluate the lawfulness of a work rule in the context of the legitimate and sub- stantial business interests of the employer in maintaining a specific work rule under the particular circumstances. Accordingly, if the General Counsel carries her burden of demonstrating that a rule is presumptively unlawful, an employer may rebut the presumption by proving that the rule advances a legitimate and substantial business inter- est and that the employer is unable to advance that inter- est with a more narrowly tailored rule. As we have explained, prior to Boeing, it was unclear precisely how the Board’s work-rules standard incorpo- rated an assessment of employer interests. Our new standard makes explicit that the Board will consider em- ployer interests when evaluating the employer’s rebuttal to the General Counsel’s showing that a rule is presump- tively unlawful. The clarified standard improves on the conspicuous shortcomings of the approach adopted in Boeing. Under the Boeing standard, a challenged rule’s “potential im- pact on NLRA rights” was balanced against “legitimate justifications associated with” the rule. 365 NLRB No. 154, slip op. at 14. But in practice, the Boeing balancing test was heavily weighted against employees’ Section 7 rights and in favor of employer interests, because—with little if any explanation—the Board proceeded to treat employee rights as “peripheral.” Id., slip op. at 15. Alt- hough the Board under Boeing never explained which employee rights are “peripheral”—and there is no clear support in the Act for making such a determination—the characterization allowed the Board to regularly (and, in our view, arbitrarily) diminish the deleterious impacts of a challenged rule on Section 7 rights.18 Crucially, Boeing’s balancing approach measured em- ployer interests against employee interests without any 18 Boeing itself provides a ready example. There, the challenged rule prohibited the use of cameras—such as the ones on smartphones—in the workplace. Taking a picture or recording a video can easily be part of protected activity. For instance, employees might take pictures of a reoccurring unsafe work condition that they then use to document a complaint to management, or they might take photos of a notice a man- ager posts on the factory floor telling them they may not discuss their pay. In a society where smartphone cameras have become ubiquitous and, accordingly, where there is increased utilization of these devices to document complaints with photographs, audio, and videos, a rule that prohibits the use of cameras has a very definite impact on protected activity. And yet, in Boeing, the Board characterized the adverse im- pact of the challenge rule on employees’ rights as “comparatively slight.” 365 NLRB No. 154, slip op. at 17. requirement that a rule be narrowly tailored to serve the employer’s legitimate interests in having the rule. Under Boeing, then, overbroad work rules are perfectly permis- sible. So long as the employer interests advanced by the rule are found to outweigh the burden on employees’ rights, that rule is lawful to maintain—even if the em- ployer interests could still be advanced by more narrowly crafting the rule such that it lessened or eliminated its burden on employees’ rights. We believe that requiring employers to narrowly tailor their rules is a critical part of working out the proper adjustment between employee rights and employer interests in the work-rules context.19 Such a requirement acknowledges employers’ preroga- tive to craft rules that they need to advance legitimate and substantial business interests while necessarily min- imizing or eliminating the burden that such rules can have on employees’ exercise of their statutory rights.20 We impose no unreasonable burden on employers by expecting them to be aware of their employees’ rights under the National Labor Relations Act, a statute enacted in 1935, more than 85 years ago, and long understood to apply in most workplaces, unionized and nonunionized alike—and to craft rules that minimize interference with their employees’ exercise of these long-established fed- eral rights. Indeed, as we have noted, it has long been uncontroversial that any ambiguity in a work rule must be construed against the employer as the drafter of the rule.21 19 See Northeastern Land Services, 645 F.3d at 483 (observing that “as a practical matter, a more narrowly drafted provision would be sufficient to accomplish” the employer’s legitimate business goals); Cintas Corp., 482 F.3d at 470 (“A more narrowly tailored rule that does not interfere with protected employee activity would be sufficient to accomplish the Company's presumed interest[.]”). The narrow- tailoring requirement also properly restores the Board’s focus on the text of a particular work rule. See, e.g., Guardsmark, supra, 475 F.3d at 374. 20 One of the purported goals of Boeing was to permit employers to craft and maintain idiosyncratic rules responsive to their own unique work situations. See Boeing, 365 NLRB No. 154, slip op. at 15–16 & fn. 79. The narrow-tailoring requirement that was absent from Boeing and that we now impose is entirely consistent with workplace-specific rules: If a certain rule is important to the specific demands of a particu- lar workplace, the employer can presumably draft the rule to fit its legitimate needs and to communicate as much to employees. It can also do so with an eye toward avoiding burdening NLRA-protected rights. 21 Putting the burden on the employer to proactively eliminate ambi- guity by narrowly tailoring its rules is also consistent with the well settled proposition that Sec. 7 allows employees to keep their protected activities confidential. See Guess?, Inc., 339 NLRB 432, 434 (2003). That right to confidentiality exists to permit employees to fully exercise their protected rights without the risk of retaliation. If the onus were on the employee to ask his employer whether an ambiguous rule prohibits protected activity, the employee would effectively be required to dis- close that he was contemplating exercising Sec. 7 rights—a situation with an obvious chilling potential. Indeed, the Board has long recog- nized the coercion inherent in work rules or statements that effectively require employees to seek management permission to engage in Sec. 7 activity. See, e.g., Brunswick Corp., 282 NLRB 794, 795 (1987). In considering whether a rule reasonably tends to chill an employee from exercising statutory rights or is sufficiently narrowly tailored to STERICYCLE, INC. 11 Prior to Boeing, the Board often applied a narrow- tailoring requirement. As the Board explained then, many of the Board’s pre-Boeing findings that a given rule was lawful to maintain were “typically because” the rule was narrowly tailored. William Beaumont, 363 NLRB at 1546. The courts of appeals approved of the Board’s application of a narrow-tailoring requirement. See, e.g., Flex Frac Logistics, 746 F.3d at 210 fn. 4; Northeastern Land Services, 645 F.3d at 483; Cintas Corp., 482 F.3d at 470; Guardsmark, LLC, 475 F.3d at 380. After all, courts are well familiar with the concepts of facial overbreadth and the importance of narrowly tailoring a rule from the First Amendment context. See, e.g., Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249, 1258 (10th Cir. 2005). We believe that a narrow-tailoring requirement is ex- actly the sort of reasonable “adjustment between the un- disputed right of self-organization assured to employees under the [] Act and the equally undisputed right of em- ployers to maintain discipline in their establishments” that the Supreme Court has instructed us to make in comparable situations. Republic Aviation, 324 U.S. at 797–798. Under Boeing, even after attempting to provide clarifi- cations in LA Specialty Produce, the Board never ex- plained which party has the burden of proof with respect to the balancing test. We make clear here that, when a rule is presumptively unlawful, it is the employer’s bur- den to prove that its legitimate and substantial business interests cannot be accomplished with a more narrowly tailored rule and that, as a result, the rule should be deemed lawful to maintain. Placing the burden on the employer is consistent with the Supreme Court’s deci- sions in comparable circumstances. See NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 781–782 (1979); Beth Isra- el Hospital v. NLRB, 437 U.S. 483, 507 (1978); Republic Aviation Corp., 324 U.S. at 803–804. This burden allo- cation is no different than under our more generally ap- plicable Section 8(a)(1) framework. See, e.g., ANG Newspapers, 343 NLRB 564, 565 (2004) (“Under the 8(a)(1) standard, the Board first examines whether the employer’s conduct reasonably tended to interfere with Section 7 rights. If so, the burden is on the employer to demonstrate a legitimate and substantial business justifi- cation for its conduct.”). This approach also does not change the General Counsel’s burden of proving the un- fair labor practice, but rather extends to the employer something akin to an affirmative defense that it has the serve the employer’s legitimate and substantial business interests, we will evaluate any explanations or illustrations contained in a rule re- garding how the rule does not apply to activity protected by Sec. 7. The Board did so when the Lutheran Heritage standard was in place. See, e.g., First Transit, Inc., 360 NLRB 619, 621–622 (2014) (rejecting argument that employer’s general “freedom of association” policy informed handbook rules and should have provided “safe harbor” for employer to maintain challenged rules). burden of sustaining to overcome the presumption that a given work rule is unlawful. Cf. NLRB v. Transportation Management Corp., 462 U.S. 393, 401–402 (1983) (up- holding the Board’s now well-established burden- shifting approach in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982)). And allocating this burden to the employer is sensible given that the employer is in the best position to explain its legitimate and substantial business interest, how its rule advances that interest, and why a more narrowly tailored rule would fail to advance that interest. C. Having rescinded the standard adopted in Boeing and revised in LA Specialty Produce, we necessarily reject those decisions and their progeny, including the categori- cal holding that the Board has made to find certain types of work rules always lawful to maintain.22 Instead of that rigid—indeed, arbitrary—categorical approach, we re- turn to a case-by-case approach, which examines the specific language of particular rules and the employer interests actually invoked to justify them. The primary problem with Boeing’s categorical ap- proach is that it was regularly applied to designate all rules of a generalized type as always lawful to maintain, no matter their specific wording, the specific industry or workplace in which the employer maintained the rule, the specific employer interests that the rule was supposed to advance, or any number of context-specific factors that may have arisen in a particular case. Boeing itself exem- plifies the arbitrary nature of this categorical approach. In Boeing, the employer was “one of the country’s most prominent defense contractors.” 365 NLRB No. 154, slip op. at 21. It maintained a rule that, absent a manager-approved business need and a permit issued by its security department, prohibited employees’ use of the camera features of electronic devices (like smartphones) on all company property. Id., slip op. at 5. Although the Board in Boeing cursorily labeled the adverse impact of this “no camera” rule on employees’ exercise of Section 7 rights “comparatively slight” (ignoring the importance of photo or video documentation of unfair labor practic- es, protected concerted activity, and the like), it at least acknowledged that the rule infringed on employees’ ex- ercise of their rights. Id., slip op. at 17, 19. Yet in apply- ing its balancing test, the Boeing Board found that the 22 Our dissenting colleague specifically criticizes the overruling of Apogee Retail, supra, which held that investigative-confidentiality rules limited to the duration of the investigation are categorically lawful to maintain. Because, contrary to our dissenting colleague, we reject the principle that such investigative-confidentiality rules are always lawful to maintain, no matter how they are written and no matter what em- ployer interests are invoked (or not invoked) to justify them, we have remanded the facial challenge to an investigative-confidentiality rule at issue in this case to the administrative law judge so that he can apply the standard announced today. 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employer’s interests advanced by the rule outweighed the adverse impact on employee rights and so deemed the rule lawful to maintain. Id., slip op. at 18–19. The employer interests advanced by the rule included: serving as an integral component of Boeing’s security protocols, “which [were] necessary to maintain Boeing’s accreditation as a federal contractor to perform classified work for the United States Government”; furnishing “a fail-safe to ensure that classified information will not be released outside of Boeing in the event that such infor- mation finds its way into a non-classified area”; playing “a key role in ensuring that Boeing complies with its federally mandated duty to prevent the disclosure of export-controlled information,” including “‘sensitive equipment, software and technology,’ the export of which is controlled by the federal government ‘as a means to promote our national security and foreign poli- cy objectives’”; mitigating “documented” instances of “foreign powers” trying to steal Boeing’s proprietary technology; and limiting “the risk”—in light of Boeing’s “documented evidence” of “surveillance by potentially hostile actors”—“of Boeing becoming a target of terror- ist attack.” Id., slip op. at 18. All of these interests that pertained to Boeing are obvi- ously unique to “one of the country’s most prominent defense contractors.” Id., slip op. at 21. They have no relevance to the overwhelming majority of employers who do not deal in “classified” information, “export- controlled information,” and the like. Despite that fact, and remarkably without any further justification, the Boeing Board put “no camera” and “no recording” rules “into Category 1,” meaning that all rules of that type are always lawful for every employer to maintain. Id., slip op. at 17. In other words, every employer can lawfully maintain a “no camera” or “no recording” rule that the Boeing Board admitted chills the exercise of Section 7 rights even if—as will be true for the overwhelming ma- jority of them—those employers share none of the inter- ests that justified Boeing’s maintenance of its rule. Boe- ing thus reflects an arbitrary and capricious approach to the analysis of work rules. We reject it. In LA Specialty Produce, in turn, the Board purported to offer “points of clarification” for the categorical ap- proach. 368 NLRB No. 93, slip op. at 2. The primary point of purported clarification was to state that Boeing’s “Category 1” balancing test involves measuring “gen- eral” employer interests advanced by a rule against the rule’s interference with employees’ exercise of Section 7 rights. Id., slip op. at 3. While there may be some legit- imate interests common to all employers at all times, and that are always entitled to the same weight in a balancing analysis, it is easy to see how such a broad approach can lead to giving employer interests in a particular case too much weight with too little justification, unnecessarily sacrificing Section 7 rights in the process. In endorsing “general” employer interests, LA Specialty Produce clearly did not effectively limit Boeing’s most obvious analytical flaw by leaving undisturbed Boeing’s holding that all “no camera” and “no recording” rules are always lawful. Confirmation of that fact is apparent in the Board’s post-LA Specialty Produce decisions. For in- stance, in AT&T Mobility, LLC, the Board found a cell- phone retail employer’s rule that prohibited employees from recording conversations lawful to maintain “as a matter of law” simply because it was a “no recording” rule and thus categorically lawful to maintain. 370 NLRB No. 121, slip op. at 3 (explaining that “Boeing held not merely that [] specific no-camera and no- recording rules . . . were lawful Category 1[] rules, but that no-camera rules as a type and no-recording rules as a type belong in Category 1[]” (emphasis in original)). It did not matter that a cellphone retailer does not deal with classified information, export controls, documented threats of foreign interference, and the like, despite that those were the very interests that justified the categorical lawfulness of the “no camera” rule in Boeing. See also BMW Mfg. Co., 370 NLRB No. 56, slip op. at 3–4 (post- LA Specialty Produce decision “requiring no case- specific justification and balancing of interests” to deem a “no recording” rule categorically lawful “based on Boe- ing”). We believe that a return to “case-specific justifi- cation” better serves the purposes of the Act. Boeing’s categorical approach is also hamstrung by its elimination of any consideration of the specific language or context of particular rules. Under Boeing, this was done by, in a single case, analyzing whether one particu- lar rule—including its specific wording and context— chills employees’ exercise of Section 7 rights, conclud- ing that it does not, and then broadly declaring lawful all similar rules of that general type, regardless of the specif- ic language or context of any of those purportedly similar rules.23 23 As an example of the problem with this approach, consider one of the rules at issue in LA Specialty Produce. That rule said: Employees approached for interview and/or comments by the news media, cannot provide them with any information. Our President, Mi- chael Glick, is the only person authorized and designated to comment on Company policies or any event that may affect our organization. 368 NLRB No. 93, slip op. at 1. This rule clearly prohibits employees from sharing “any information” when asked for it by the media and gives the company president exclusive authority to comment on “any event” that could affect the company. Meanwhile, the LA Specialty Board acknowledged that “Section 7 generally protects employees when they speak with the media about working conditions, labor dis- putes, or other terms and conditions of employment.” Id., slip op. at 4. Yet the Board concluded that a reasonable employee would only inter- pret the rule as a prohibition against speaking to the news media on the company’s behalf—reading a limitation into the rule—and so concluded that the rule did not even infringe on Sec. 7 rights. Id., slip op. at 4–5. That conclusion was untenable, precisely because it reflected the Board’s failure to genuinely interpret work rules from an employee perspective. In turn, based on its interpretation of the rule, the Board concluded that all similar rules are always lawful for every employer to maintain. LA Specialty Produce, 368 NLRB No. 93, slip op. at 5. Such STERICYCLE, INC. 13 Our return to a case-specific approach is intended to remedy the obvious problems with Boeing’s categorical approach. In order to consider all important aspects of the problem posed by potentially overbroad work rules, the Board should examine the specific wording of the rule, the specific industry and workplace context in which it is maintained, the specific employer interests it may advance, and the specific statutory rights it may infringe. The case-by-case approach will not sacrifice clarity and predictability for regulated parties. As is al- ways the norm, the Board will aim to ensure that like cases will be decided alike. The nearer the wording of a specific rule is to a rule assessed in a prior case, or the nearer the workplace context or employer interests are to those factors previously considered, the more likely the Board’s determination of the rule’s legality will be the same. As a consequence, more predictable outcomes will emerge over time. For instance, many of the Board’s core pre-Lafayette Park work-rules holdings— such as those concerning maintenance of a “no solicita- tion” rule, see, e.g., Republic Aviation, 324 U.S. at 803 fn. 10—that Boeing did not overrule and that we main- tain, describe generally applicable parameters for as- sessing certain types of rules. But that process should not be short-circuited, as the Board plainly did in apply- ing Boeing. Put somewhat differently, consistent with the Act, predictability and certainty cannot be achieved simply by giving employers broad authority to adopt work rules and by correspondingly shrinking the scope of Section 7. III. The Board’s usual practice is to apply new policies and standards retroactively to all pending cases in whatever stage, unless doing so would amount to a manifest injus- tice. SNE Enterprises, Inc., 344 NLRB 673, 673 (2005). To determine whether retroactive application amounts to a manifest injustice, the Board considers the reliance of the parties on preexisting law, the effect of retroactivity on accomplishment of the purposes of the Act, and any particular injustice arising from retroactive application. Id. Here, retroactive application of the new work-rules standard will not cause manifest injustice. First, LA Spe- cialty Produce’s purported “clarifications” of Boeing’s standard were announced less than 4 years ago, so parties have not had an extended period to rely on Boeing’s pur- portedly clarified standard. In any event, given the un- clear nature of Boeing’s interpretive inquiry and the con- fusing results of its categorical classification scheme, reliance on Boeing as a practical matter was minimal. Second, as noted above, the standard from Boeing that we overrule was detached from the Act’s goals, which are better promoted by the standard that we adopt today. a sweeping determination broadly diminishes employees’ Sec. 7 rights at all workplaces, without any particularized justification to do so. Retroactive application is thus important to furthering the Act’s purposes. Third, and last, we have identified no particular injustice arising from retroactive application. In particular, to the extent that a rule in a pending case is now found facially unlawful, even if it would have been upheld under Boeing, the remedy will be an order to re- scind the rule, leaving the employer free to replace the rule with a more narrowly tailored substitute. For these reasons, we find that retroactive application of the stand- ard we announce today is appropriate. In this case, the General Counsel alleges that the Re- spondent unlawfully maintained overbroad work rules governing personal conduct, conflicts of interest, and confidentiality of harassment complaints. Applying Boe- ing and its progeny, the judge determined that mainte- nance of those rules was unlawful. Having overruled those decisions, we do not review the judge’s application of them. Instead, to allow the parties an opportunity to present arguments and introduce any relevant evidence under the new standard announced today, we remand this case to the judge for further proceedings consistent with this decision. IV. We have carefully considered the views of our dissent- ing colleague. We are not persuaded that we should ad- here to the Board’s current approach in cases involving facial challenges to work rules.24 Nor are we persuaded that the approach we adopt today is unsound. As we have done, the dissent examines the history of the Board’s approach to work rules (a review noticeably absent from Boeing). Much of its discussion of Board and court of appeals cases from the 1960s, 1970s, and 1980s reaches essentially the same conclusion as we have: The Board’s older case law in this area was devel- oping and unclear. The dissent’s claim that Board prece- dent was unclear and applied inconsistently, however, undermines its contention that there is “[l]ongstanding precedent” that “requires” the Board to take a particular approach in this area of law, a claim that the Boeing Board did not make.25 More pointedly, our dissenting colleague contends that Republic Aviation requires that we give “more weight” to employers’ interests than today’s approach does. We 24 In particular, the dissent offers no reason to continue to follow Boeing’s categorical approach, other than to assert that the categories “provide employers with ‘certainty beforehand.’” As we have ex- plained at length, the categorical approach was an arbitrary and capri- cious approach to the analysis of work rules. To the extent that it pro- vided any “certainty,” it did so by granting employers broad scope to adopt particular types of work rules, regardless of an employer’s specif- ic interests and regardless of how the rule was phrased, and by corre- spondingly limiting the scope of employees’ statutory rights. The standard we adopt provides certainty, as like cases will be decided alike, without the wholesale sacrifice of statutory rights. 25 In any event, for all the reasons we have stated, we would adopt today’s approach, even if it were inconsistent with prior Board deci- sions predating Lutheran Heritage. 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reject that contention. As we have explained, a central consideration in crafting a new standard has been, as Republic Aviation directs, “working out an adjustment between the undisputed right of self-organization assured to employees under the [] Act and the equally undisputed right of employers to maintain discipline in their estab- lishments.” Republic Aviation, 324 U.S. at 797–798. That directive tells us that employees’ rights to organize and employers’ rights to have rules to maintain discipline are “equally undisputed”—not, of course, that those un- disputed rights should be equally weighted in every cir- cumstance. Instead, the Supreme Court left it to the Board to “work[] out [the] adjustment” between those sometimes conflicting rights using the Board’s “adminis- trative flexibility” to “accomplish the dominant purpose” of the Act, which “is the right of employees to organize for mutual aid without employer interference.” Id. at 798; see also 29 U.S.C. § 151. The standard adopted today is carefully calibrated to achieve the adjustment that Republic Aviation describes. Despite the dissent’s unfounded speculation as to how future cases will be decided, the Board’s inquiry does not end if the General Counsel proves that a rule has a rea- sonable tendency to interfere with employees’ exercise of Section 7 rights. Rather, that showing merely establishes a presumption of unlawfulness. An employer may rebut it by proving that the rule advances a legitimate and sub- stantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. In this way, the test appropriately accommodates employers’ right to maintain rules necessary to operating their businesses. At the same time, when an employer’s rule is overbroad—i.e., when it could be narrowed to lessen the infringement of employees’ statutory rights while still advancing the employer’s interest—the stand- ard properly requires that narrowing. We reject our dissenting colleague’s tendentious pre- diction that the narrow-tailoring requirement will prove impossible to meet, as well as his apparent demand that we explain today how employers should tailor their rules in all cases. Employers are more than equipped to nar- rowly tailor their work rules to eliminate unnecessary overbreadth. In the absence of a specific rule, promul- gated in a specific workplace, it is premature for us to assume how a work rule could potentially be narrowly tailored.26 Of course, as a defender of Boeing and its progeny, our colleague has indicated a preference for a “one-size-fits-all” approach that negates the need for any 26 Our colleague also suggests that the Board should provide em- ployers with a definitive “safe harbor” for their rules if they generally disclaim an intention to infringe on Sec. 7 rights. Notably, no “safe harbor” issue is presented in this case. In any event, as we have noted (see fn. 21, supra), in considering whether a rule reasonably tends to chill an employee from exercising statutory rights or is sufficiently narrowly tailored, we will evaluate any explanations or illustrations contained in the rule regarding how the rule does not apply to Sec. 7 activity. such tailoring. But, for the reasons we have explained here, such an approach is unsound and would not reach a proper “adjustment” between conflicting rights. Moreo- ver, it is unnecessary. Under Lutheran Heritage, the Board was able to carefully parse work rules, finding some lawful and others not.27 The dissent also challenges the new standard’s ap- proach to interpreting work rules, i.e., interpreting the rule from the perspective of the economically dependent employee (a layperson, not a lawyer) who contemplates engaging in Section 7 activity, consistent with the Su- preme Court’s decision in Gissel. That approach—in line with the Board’s general approach to employer statements alleged to violate Section 8(a)(1) of the Act— asks whether such an employee could reasonably inter- pret the rule to restrict or prohibit Section 7 activity. Our dissenting colleague seems to argue that the new stand- ard means something other than what it plainly says. We have not held that a rule will be found presumptively unlawful if a coercive interpretation is merely conceiva- ble (as opposed to reasonable). We have explained, ra- ther, that in order to adequately protect the exercise of Section 7 rights we will not require the coercive interpre- tation to be the only reasonable interpretation. In other words, ambiguous rules are properly construed against the employer. We are not persuaded by our colleague’s criticisms of this approach, which fail to acknowledge that the narrow tailoring of work rules fits within the larger statutory context. As a preliminary matter, we dispose of the dis- sent’s various mischaracterizations in support of its ar- gument. The dissent says the reasonable employee we describe will find a prohibition on Section 7 activity in a rule “where none exists.” No, if there is no reasonable reading of the rule that it prohibits Section 7 activity, that is the end of the inquiry: the rule is lawful. The dissent says our approach involves interpretation of “any isolat- ed word or phrase” in a rule. No, it turns on the interpre- tation of the rule as a whole; indeed, one of our criticisms of Boeing’s categorical approach is that it failed entirely to consider any of the specific text of rules. The dissent says that its (undefined) “truly reasonable” employee would use “common sense” when interpreting rules whereas the reasonable employee we describe does not. No, our inquiry, again, involves a reasonable employee who interprets work rules as a layperson rather than as a lawyer. Our colleague apparently would hold that a work rule cannot be deemed unlawful (or presumptively unlawful) if it is susceptible to a noncoercive interpretation. In effect, ambiguous rules would be construed against em- ployees, permitting such rules regardless of the chill that they cause to employees’ exercise of Section 7 rights. It seems clear to us, if not to our colleague, that an ambig- 27 See, e.g., First Transit, Inc., 360 NLRB 619 (2014). STERICYCLE, INC. 15 uous rule can have a chilling effect on employees con- cerned about avoiding discipline from their employer. We reject our colleague’s policy choice that would sanc- tion coercive work rules. Today’s standard, in contrast, is intended to be robustly prophylactic in protecting stat- utory rights—while still properly recognizing employers’ legitimate and substantial business interests, where shown, in maintaining particular work rules. The dissent also contends that a rule’s ambiguity should not be construed against the employer as the drafter and that the economic dependence of employees on their employer should not factor into to the Board’s understanding as to how an employee would reasonably interpret a work rule. As to the first point, the dissent argues that in distinguishing between rules that “could” be interpreted to have a coercive meaning and rules that “would” be interpreted this way, “Lutheran Heritage implicitly overruled Lafayette Park Hotel” with regard to the application of the interpretation-against-the-drafter principle. We are not persuaded by this novel reading of the case law. However, our disagreement on this point is moot given the standard we adopt today. Even if Lu- theran Heritage departed from precedent, without expla- nation, we return to that precedent now. Aside from a long pedigree, see, e.g., Farah Manufacturing Co., 187 NLRB 601, 602 & fn. 5 (1970) (quoting NLRB v. Miller, 341 F.2d 870, 874 (2d Cir. 1965)), the familiar interpre- tation-against-the-drafter principle is firmly grounded in both an employee’s lack of specialized legal or interpre- tive expertise, Miller, 341 F.2d at 874 (justifying the doc- trine’s application by noting that “employees . . . are not grammarians”), and inequality of bargaining power vis- à-vis an employer, see 29 U.S.C. § 151 (finding “ine- quality of bargaining power between employees . . . and employers”). See also Restatement (Second) of Con- tracts § 206 cmt. A (explaining that the interpretation against the drafter rule “is often invoked . . . in cases where the drafting party has the stronger bargaining posi- tion”). We note that our dissenting colleague does not explain why he would get rid of this longstanding and well-founded interpretive principle. In turn, the dissent’s challenge to our reliance on the economic dependence of employees as supporting the new standard is based on an attempt to limit Gissel. Ac- cording to the dissent, the Supreme Court in that case was only referring to a specific “category” of employer statements—namely, “predictions of dire consequences if employees unionize.” But the Court’s relevant observa- tions are in no way limited in that manner. Here, in per- tinent part, is what it said: Any assessment of the precise scope of employer ex- pression, of course, must be made in the context of its labor relations setting. Thus, an employer’s rights can- not outweigh the equal rights of the employees to asso- ciate freely, as those rights are embodied in § 7 and protected by § 8(a)(1) and the proviso to § 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their em- ployers, and the necessary tendency of the former, be- cause of that relationship, to pick up intended implica- tions of the latter that might be more readily dismissed by a more disinterested ear. Gissel, supra, 395 U.S. at 617 (emphasis added). Consistent with this observation, the Board has long factored employ- ees’ economic dependence into its analysis of issues under Section 8(a)(1) of the Act.28 Our dissenting colleague does not challenge the basic premise that employees are, indeed, economically dependent on their employers. The National Labor Relations Act itself rests on that premise. In short, our dissenting colleague has pointed to noth- ing in the Act or in the decisions of the Supreme Court that either compels the Board to adhere to the Boeing work-rules standard or that prevents the Board from adopting the standard announced today. That standard, we believe, better promotes federal labor policy and bet- ter reflects the teachings of the Court, while addressing shortcomings in the Lutheran Heritage standard. ORDER IT IS ORDERED that the allegations that the Respondent violated Section 8(a)(1) by maintaining its rules govern- ing personal conduct, conflicts of interest, and confiden- tiality of harassment complaints are remanded to Admin- istrative Law Judge Michael A. Rosas for further appro- priate action as set forth above. IT IS FURTHER ORDERED that the judge shall afford the parties an opportunity to present evidence on the re- manded issues and shall prepare a supplemental decision setting forth credibility resolutions, findings of fact, con- clusions of law, and a recommended Order. Copies of the supplemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable. Dated, Washington, D.C. August 2, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, Member ______________________________________ 28 See, e.g., Mesker Door, Inc., supra, 357 NLRB at 595; Daikichi Sushi, 335 NLRB 622, 624 (2001), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003); President Riverboat Casinos of Missouri, 329 NLRB 77, 77 (1999); Logo 7, Inc., 284 NLRB 204, 204–205 fn. 4 (1987); American Spring Wire Corp., 237 NLRB 1551, 1553 (1978). 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting. The statement “Boeing1 overruled Lutheran Heritage Village2” is true, but misleading. It is misleading be- cause it suggests that the Board adhered to Lutheran Heritage right up until it issued Boeing in December 2017. The truth is, Lutheran Heritage was effectively overruled as early as 2011, by a Board majority that claimed to apply that decision when in fact it was apply- ing the Lutheran Heritage dissent. Today, my colleagues do likewise. They say they are adopting a modified ver- sion of the Lutheran Heritage standard. In reality, they are implementing a slightly modified version of the Lu- theran Heritage dissent—and that slight modification is more akin to window dressing than actual change. Under the standard my colleagues announce, a work rule is presumptively unlawful to maintain “[i]f an em- ployee could reasonably interpret [it] to have a coercive meaning” (emphasis added). The Lutheran Heritage majority rejected that standard. They held that a work rule was unlawful to maintain if employees reasonably would interpret it to prohibit Section 7 activity,3 and they made clear that where a rule does not expressly refer to Section 7 activity, reasonable employees would not read it as doing so “simply because the rule could be inter- preted that way.”4 My colleagues’ standard reflects the views of the dissenters in Lutheran Heritage, who took the position that “a rule that prohibits, inter alia, unpro- tected behavior may be unlawful if it also contains pro- hibitions so broad that they can reasonably be understood as encompassing protected conduct.”5 That is the stand- ard my colleagues embrace. Ironically, although Boeing overruled Lutheran Herit- age, it was more faithful to that decision than is my col- leagues’ decision today. The Boeing and Lutheran Her- itage majorities went about it in different ways, but in determining whether a challenged work rule was lawful to maintain, both gave substantial weight to legitimate employer interests advanced by the rule as well as its potential to chill the exercise of Section 7 rights. Alt- hough the Lutheran Heritage majority announced a 1 Boeing Co., 365 NLRB No. 154 (2017) (Boeing). 2 Lutheran Heritage Village–Livonia, 343 NLRB 646 (2004) (Lu- theran Heritage). 3 Sec. 7 of the Act relevantly provides that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities . . . .” 4 Lutheran Heritage, 343 NLRB at 647 (emphasis in original). 5 Lutheran Heritage, 343 NLRB at 649 (Members Liebman & Walsh, dissenting in part) (emphasis added). standard that appeared to consider only the latter—i.e., whether “employees would reasonably construe the lan- guage [of a rule] to prohibit Section 7 activity”6—they made it abundantly clear that legitimate employer inter- ests were to be accommodated in the application of the standard. Implicitly embracing a view of the “reasonable employee” that the Board subsequently made explicit in LA Specialty Produce,7 the Lutheran Heritage majority took for granted that reasonable employees understand the legitimate interests advanced by work rules and will interpret them in that light. Accordingly, their position was that even if a challenged rule could be read to restrict Section 7 activity, reasonable employees would not read it that way where the rule does not refer to such activity and advances legitimate employer interests. “To take a different analytical approach,” said the Lutheran Herit- age majority, “would require the Board to find a viola- tion whenever the rule could conceivably be read to cov- er Section 7 activity, even though that reading is unrea- sonable. We decline to take that approach. . . . [R]easonable employees would not read the rule in that way. They would realize the lawful purpose of the chal- lenged rules.”8 Boeing, on the other hand, announced a standard that expressly balances legitimate employer interests against employees’ Section 7 rights, but both the Lutheran Heritage and Boeing majorities accorded employer interests significant weight in the analysis. This is, of course, what an adequate standard for de- termining the lawfulness of a challenged work rule must do. As the Supreme Court held nearly 80 years ago, “[o]pportunity to organize and proper discipline are both essential elements in a balanced society,” so the Board’s task in cases such as this is to “work[] out an adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally un- disputed right of employers to maintain discipline in their establishments.” Republic Aviation v. NLRB, 324 U.S. 793, 797–798 (1945).9 It is important to note that the 6 Lutheran Heritage, 343 NLRB at 647. 7 LA Specialty Produce Co., 368 NLRB No. 93 (2019). 8 Lutheran Heritage, 343 NLRB at 647–648. As I will show, the Board majority in Lafayette Park Hotel, 326 NLRB 824 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), held the same implicit view of the “rea- sonable employee” as the Lutheran Heritage majority. 9 In NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963), the Court spoke of the Board’s “delicate task” of “weighing the interests of em- ployees in concerted activity against the interest of the employer in operating his business in a particular manner and of balancing . . . the intended consequences upon employee rights against the business ends to be served by the employer’s conduct.” Id. at 229. In NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), the Court emphasized the Board’s “duty to strike the proper balance between . . . asserted busi- ness justifications and the invasion of employee rights in light of the Act and its policy.” Id. at 33–34. Although neither case dealt specifi- cally with work rules, the breadth of the Court’s language indicates its broader applicability. However, as I will discuss later, several federal courts of appeals have expressly found that, in order to determine the legality of work rules under the Act, the Board must apply a balancing STERICYCLE, INC. 17 Supreme Court did not state that one side of this “ad- justment” should be given significantly more weight than the other. Further, because it is impossible to anticipate every specific act or omission warranting discipline, it follows that an adequate standard must also accommo- date the reality that, as the Board recognized in Lutheran Heritage, “[w]ork rules are necessarily general in nature . . . .”10 The standard the Board adopted in Boeing and refined in LA Specialty Produce meets these requirements. It accommodates the reality that work rules must be word- ed generally, and it accords sufficient weight to both em- ployee rights and employer interests so that it is fair to say that these “equally undisputed rights” are truly being “balanced” against each other in a meaningful way. Un- der Boeing/LA Specialty Produce, the Board begins by asking whether a reasonable employee—one “who is ‘aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job,’” and who “‘does not view every employer policy through the prism of the NLRA’”11—would interpret a challenged rule to potentially interfere with the exercise of Section 7 rights. If not, the rule is lawful. If so, the Board pro- ceeds to balance that potential interference against “legit- imate justifications associated with the rule,”12 i.e., legit- imate interests the rule advances. If the rule’s adverse impact on the exercise of Section 7 rights outweighs the legitimate interests it serves, the rule cannot be lawfully maintained; if the balance tips the other way, it can. As I will show, this standard is similar to one the Board adopted and applied decades earlier, at the insistence of several circuit courts, only to abandon it without expla- nation in Lafayette Park Hotel. In contrast, the standard my colleagues announce to- day does not measure up. It gives effectively dispositive weight to the “employee rights” side of the balance. In- deed, the majority does not actually balance employee rights and employer interests in a manner consistent with Republic Aviation. A balancing standard necessarily entails the possibility that in a particular case, a chal- lenged rule may be lawful to maintain even though it limits the exercise of Section 7 rights to some extent be- cause the legitimate employer interests it advances out- weigh that limitation. No such possibility exists under the standard my colleagues have adopted. To begin, the majority holds that work rules are to be viewed from the perspective of a very different kind of “reasonable employee” than contemplated in LA Special- ty Produce, Lutheran Heritage, and Lafayette Park Ho- tel. The majority’s interpretation of “reasonable employ- test that gives sufficient weight to employers’ rights, as required by the Supreme Court. 10 Lutheran Heritage, 343 NLRB at 648. 11 LA Specialty Produce, 368 NLRB No. 93, slip op. at 2 (quoting T- Mobile USA, Inc. v. NLRB, 865 F.3d 265, 271 (5th Cir. 2017)). 12 Boeing, 365 NLRB No. 154, slip op. at 3. ee” in this context creates the labor-law equivalent of tort law’s “eggshell skull” plaintiff. Their reasonable em- ployee is an individual predisposed to read into their em- ployer’s work-rules references to Section 7 activity where none exists, and who would not engage in protect- ed concerted activity without first minutely examining each rule set forth in their employee handbook. If this individual could possibly suspect that any isolated word or phrase in a rule that does not prohibit Section 7 activi- ty might be interpreted to do so, that rule would coerce employees from engaging in protected concerted activity and therefore would be presumptively unlawful, even though truly reasonable employees would apply common sense and recognize that the evident purpose of the rule has nothing to do with Section 7 rights.13 It is only the possibility that this so-called reasonable employee could interpret the rule outside the context of its evident pur- pose that is controlling. Further, in their view, the em- ployer maintaining such a rule can escape unfair labor practice liability only by proving two things: that the rule advances legitimate and substantial interests, and that those interests cannot be advanced by a more nar- rowly tailored rule. Let’s put some flesh on the bones of these abstractions. Take, for example, a rule that subjects employees to dis- cipline for “inability or unwillingness to work harmoni- ously with other employees.”14 How would this rule fare under the two different standards? Under the balancing standard of Boeing and LA Spe- cialty Produce, the answer is obvious. Employees who view work rules in the context of the everydayness of their jobs and not primarily through the prism of the Act would not reasonably interpret this rule to prohibit Sec- tion 7 activity. They would understand that the directive to work harmoniously with other employees simply “re- flect[s] the lawful expectation that employees ‘comport themselves with general notions of civility and decorum in the workplace.’”15 Accordingly, the rule would be upheld without reaching the balancing-of-employee- rights-and-employer-interests step of the Boeing analy- sis.16 Under my colleagues’ test, the answer is equally obvi- ous. Section 7 gives employees the right (among others) to form, join, or assist labor organizations. Given that a 13 This is especially true in cases where the General Counsel has is- sued a complaint alleging that rules contained in employee handbooks are unlawful, despite the fact that the rules were not alleged as unlawful in the underlying charge. See infra n.46. 14 See 2 Sisters Food Group, 357 NLRB 1816 (2011). 15 Id. at 1829 (Member Hayes, dissenting in part) (quoting Palms Hotel & Casino, 344 NLRB 1363, 1368 (2005)). 16 Without question, the Lutheran Heritage majority also would have upheld this rule, not only because employees would understand the legitimate interests the rule advances and therefore would not reasona- bly construe it to prohibit Sec. 7 activity, but also because the only way to find the rule unlawful is by examining the phrase “work harmonious- ly” in isolation, and Lutheran Heritage rejected an analysis that reads “particular phrases in isolation.” 343 NLRB at 646. 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union-organizing campaign might occasion disharmony among employees, the reasonable employee of my col- leagues’ imagination would find that the rule could be interpreted to prohibit union activity, even if that was the furthest thing from the employer’s mind. Therefore, the rule would be presumptively unlawful. Even assuming the employer proves that the rule serves legitimate and substantial interests—and who can reasonably doubt that it does?17—its proof is for naught unless it also proves that those interests cannot be advanced by a more nar- rowly tailored rule. How an employer is to do so, the majority does not say. No guidance is provided regard- ing evidence that might suffice to establish this defense. I suspect it will rarely if ever be established, and I am confident that my colleagues would not find it estab- lished in this instance. Because it is unlikely that findings of presumptive un- lawfulness can be overcome, employers’ only real hope is to avoid that finding in the first place. And because it is virtually impossible to craft work rules that are general enough to serve their intended lawful purpose without being susceptible to an interpretation that infringes on Section 7 rights,18 the only reliably predictable way that employers might insulate their work rules from Board invalidation would be by adding a legally sufficient dis- claimer to their employee handbooks, i.e., language that would reassure even the majority’s hypervigilant “rea- sonable employee” that none of the rules contained there- in applies to Section 7 activity. Accordingly, the full breadth of my colleagues’ decision cannot be understood until the Board addresses the question of safe harbor lan- guage in future cases. My colleagues in the majority have a heavy responsi- bility. It is up to them to carry out the “delicate task” of striking an appropriate balance between employee rights and legitimate employer interests.19 I believe they have failed to discharge their duty in this regard. Accordingly, I respectfully dissent.20 17 Employees who work harmoniously with others lift the morale of the workplace, they do not bully or harass their coworkers, and (all else being equal) they are likely to be more productive than employees who do not. It also stands to reason that a harmonious workplace is likely to correlate positively with higher rates of employee retention. 18 See Boeing, 365 NLRB No. 154, slip op. at 9 (“[I]t is likely that one can ‘reasonably construe’ even the most carefully crafted rules in a manner that prohibits some hypothetical type of Section 7 activity.”); Lafayette Park Hotel, 326 NLRB at 830 (Chairman Gould, further concurring) (“When the rules have an obvious intent, they cannot be found unlawful by parsing out certain words and creating theoretical definitions that differ from the obvious ones. If that were the standard, virtually all of the work rules in today’s workplace could be deemed violative of our Act . . . .”). 19 NLRB v. Erie Resistor Corp., 373 U.S. at 229; see also NLRB v. Great Dane Trailers, Inc., 388 U.S. at 33–34. 20 At issue in this case are three work rules maintained by the Re- spondent, dealing with personal conduct, conflicts of interest, and in- vestigative confidentiality. Applying their new standard retroactively, my colleagues remand this case to the administrative law judge to apply it to these rules. I would apply the previous standards, i.e., those set Discussion A. Longstanding precedent requires the Board to give substantial weight to legitimate employer interests. The majority would have the reader believe that the standard they announce today represents a new and im- proved version of the Board’s traditional work-rules ju- risprudence, from which the Board departed when it is- sued Boeing. But their review of precedent is superficial and incomplete. As I will show, a fuller and more thor- ough review of court and Board precedent flips the script on my colleagues’ preferred narrative. It was Boeing’s balancing standard that returned Board law to conformity with both judicial precedent and the main thrust of the Board’s work-rules precedent over the years, under which legitimate employer interests—far from being relegated to an affirmative defense that most likely never will be met, as the majority has done—were accorded substantial weight. As stated above, the Supreme Court requires the Board to “work[] out an adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employ- ers to maintain discipline in their establishments.”21 “Working out an adjustment between” employee and employer rights means recognizing that, in the Court’s words, “these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employ- er or employee.”22 And an accommodation between competing rights “must be obtained with as little destruc- tion of the one as is consistent with the maintenance of the other,”23 which implies that some “destruction” is acceptable—indeed, unavoidable. The Board’s most well-settled, longstanding work-rule standards contradict the majority’s insistence that work rules, to be lawful, must be narrowly tailored to avoid restricting the exercise of Section 7 rights. Consistent with Supreme Court precedent, the Board’s work-rules jurisprudence has long reflected its recognition that the exercise by employees of their Section 7 rights may be and indeed must be restricted to the extent necessary to accommodate employers’ rights and legitimate interests. For example, to accommodate employers’ property rights, Board law allows employers to maintain a rule prohibiting off-duty employees from entering the interior of their facility and outside work areas, even though such a rule imposes a substantial limitation on off-duty em- ployees’ exercise of their Section 7 right to engage in union activity by confining that activity to outside non- forth in Boeing, LA Specialty Produce, and applicable post-Boeing cases. But since my colleagues do not presently pass on the lawfulness of these rules, I will refrain from doing so unless and until the case returns to the Board on exceptions. 21 Republic Aviation v. NLRB, 324 U.S. at 797–798. 22 Id. at 798. 23 NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). STERICYCLE, INC. 19 work areas of the property.24 Because “working time is for work,” employers may lawfully maintain a rule pro- hibiting solicitation during working time, even though “working time” comprises most of the time employees spend at the workplace, and therefore a rule that prohibits solicitation on working time substantially restricts em- ployees’ exercise of their Section 7 right to engage in union-related solicitation.25 Because working time is for work and literature easily turns into litter, employers may lawfully maintain a rule prohibiting distribution of litera- ture during working time and in working areas at any time, even though such a rule sharply limits when and where employees may exercise their Section 7 right to distribute union-related literature.26 Moreover, a no- solicitation or no-distribution rule that sweeps more broadly than these lawful prohibitions is presumptively unlawful, and the employer still may demonstrate that special circumstances justify the broader prohibition.27 In short, the Board has long recognized that where legit- imate employer rights and interests warrant, the fact that a work rule encompasses Section 7 activity within the scope of its prohibition does not make the rule unlawful to maintain. In tension with these precedents, the Board has occa- sionally adjudicated the lawfulness of work rules by fo- cusing exclusively on whether a challenged rule restrict- ed the exercise of Section 7 rights.28 However, it ulti- mately recognized that in determining whether the mere maintenance of a work rule violates the Act, the chilling effect of the rule on Section 7 activity must be balanced against the employer’s legitimate justifications for main- taining it. In doing so, the Board followed the lead of several federal courts of appeals, albeit somewhat halt- ingly. In McDonnell Douglas Corp., 194 NLRB 514 (1971), the Board considered a rule that limited distribution of 24 Tri-County Medical Center, 222 NLRB 1089 (1976). 25 Peyton Packing Co., 49 NLRB 828, 843 (1943), enfd. 142 F.2d 1009 (5th Cir. 1944), cert. denied 323 U.S. 730 (1944); Essex Interna- tional, Inc., 211 NLRB 749 (1974). 26 Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962); Our Way, Inc., 268 NLRB 394 (1983). 27 Peyton Packing, 49 NLRB at 843–844 (holding that a rule prohib- iting solicitation on nonworking time “must be presumed to be an un- reasonable impediment to self-organization and therefore discriminato- ry in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline”); Stoddard- Quirk Manufacturing, 138 NLRB at 616, 621–622 (finding rule prohib- iting “unauthorized distribution of literature of any description on com- pany premises” presumptively invalid and that the employer did not prove the rule was necessary to maintain production or discipline). 28 See, e.g., Solo Cup Co., 144 NLRB 1481, 1481–1482 (1963) (“[W]here the language is ambiguous and may be misinterpreted by the employees in such a way as to cause them to refrain from exercising their statutory rights, then the rule is invalid even if interpreted lawfully by the employer in practice.”); Hyland Machine Co., 210 NLRB 1063, 1071 (1974) (“[T]he ambiguous language might be interpreted by workers in such a way as to cause them to refrain from exercising their statutory rights, hence the rule is invalid even if [r]espondent intended or interpreted it privately otherwise.”). literature by off-duty employees to “a reasonable time before or after . . . shifts.” Although it recognized that the rule was prompted by “legitimate concerns” involv- ing “security, traffic, and littering” and that the employer was entitled to adopt “reasonable rules designed to im- plement its legitimate concerns,” the Board found the rule unlawful without balancing those concerns against the rule’s restriction of Section 7 activity. Id. at 514. On review, the United States Court of Appeals for the Eighth Circuit refused to enforce the Board’s order. McDonnell Douglas Corp. v. NLRB, 472 F.2d 539 (8th Cir. 1973). The court held that the adjustment of employee rights and legitimate employer interests mandated by Republic Aviation required the Board to do more than just consider those respective rights and interests. Rather, it held that Supreme Court precedent requires the Board to balance those rights and interests and determine which was to be accorded greater weight: “[T]he vital issue which the Board should have considered more fully in this case,” wrote the court, “is balancing the diminution of the em- ployees’ § 7 rights as the result of the subject rule against the interests of McDonnell being protected by the rule. In that balancing process, the Board should have deter- mined whether the former sufficiently outweighed the latter to necessitate the order voiding the contested parts of the rule.” 472 F.2d at 545.29 The court remanded the case to the Board to try again. On remand, the Board accepted the court’s opinion as the law of the case and summarily concluded that the employer “ha[d] shown sufficient need to maintain security to justify its rules in question.” McDonnell Douglas Corp., 204 NLRB 1110, 1110 (1973). Next, in Jeannette Corp., 217 NLRB 653 (1975), the Board adopted an administrative law judge’s conclusion that the employer was violating Section 8(a)(1) by main- taining “an unwritten rule prohibiting employees from discussing wage rates with other employees,” id. at 653– 654, based solely on the judge’s rationale that the rule “constitute[d] a clear impediment to, and a restraint up- on, employees’ Section 7 right to engage in concerted activities for mutual aid and protection concerning an undeniably significant term of employment,” id. at 656. On review, the United States Court of Appeals for the Third Circuit upheld the result the Board had reached, but based on a rationale that implicitly criticized the in- completeness of the Board’s analysis. See Jeannette Corp. v. NLRB, 532 F.2d 916 (3d Cir. 1976). After agreeing with the Board that the rule tended to restrain protected concerted activity, id. at 918, the court contin- ued as follows: 29 The court of appeals was obviously troubled by the fact that the Board had failed to recognize that much of the work done at the em- ployer’s facility was “militarily sensitive and classified secret by the United States government.” Id. at 547. 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Once it is established that the employer's conduct ad- versely affects employees’ protected rights, the burden falls on the employer to demonstrate “legitimate and substantial business justifications” for his con- duct. N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967); N.L.R.B. v. Jemco, Inc., 465 F.2d 1148, 1152 n.7 (6th Cir. 1972). In weighing the justifi- cations offered by the employer, we must heed the Su- preme Court's admonition that “[it] is the primary re- sponsibility of the Board and not of the courts ‘to strike the proper balance between the asserted business justi- fications and the invasion of employee rights in light of the Act and its policy.’” N.L.R.B. v. Fleetwood Trailer Co., supra, 389 U.S. at 378, quoting N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 33–34 (1967). Id. at 918–919. Thus, like the Eighth Circuit in McDonnell Douglas, the Third Circuit took the position that Supreme Court precedent precludes finding a work rule unlawful based solely on its adverse effect on employees’ Section 7 rights, and mandates that the Board balance that adverse effect against the employer’s “asserted business justifica- tions” for the rule. However, because the employer had failed to assert any justification for its unwritten rule, id. at 919–920, the rule was upheld without the otherwise- required balancing.30 Subsequently, in Texas Instruments Inc., 236 NLRB 68 (1978), the Board found that the employer violated the Act by maintaining a rule prohibiting employees from disseminating its wage scales outside the organiza- tion, once again relying exclusively on the rule’s adverse impact on the exercise of Section 7 rights. Id. at 72. On review, the United States Court of Appeals for the First Circuit remanded with instructions that the Board apply the standard announced by the Third Circuit in Jeannette Corp. See Texas Instruments, Inc. v. NLRB, 599 F.2d 1067, 1073 (1st Cir. 1979). On remand, the Board reached the same result, although its decision left unclear whether it agreed with the court that a balancing of em- ployee rights and employer justifications is mandatory or simply accepted the court’s decision in that regard as the 30 The Third Circuit’s citation to NLRB v. Jemco implicitly ad- dressed a possible objection that might have been raised to its reliance on Great Dane Trailers. In Great Dane, the Supreme Court stated that “[o]nce it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was moti- vated by legitimate objectives,” 388 U.S. at 34 (first emphasis added, second emphasis in original), and whether a challenged work rule may be lawfully maintained presents an issue of alleged coercion or restraint under Sec. 8(a)(1), not of discriminatory conduct under Sec. 8(a)(3). In Jemco, however, the Sixth Circuit held that the Great Dane analysis is not limited to allegations of discriminatory conduct. “[T]he burden on the employer prescribed in Great Dane arises once it is established that the employer engaged in conduct which adversely affected employee rights, regardless of whether that conduct was discriminatory under Sec[.] 8(a)(3) or merely coercive or restraining under Sec[.] 8(a)(1).” NLRB v. Jemco, Inc., 465 F.2d 1148, 1152 n.7 (6th Cir. 1972). law of the case. Texas Instruments Inc., 247 NLRB 253 (1980), enf. denied 637 F.2d 822 (1st Cir. 1981). Two years later, the Board dispelled this lack of clari- ty, upholding an employer’s confidentiality policy on the basis that the adverse impact of the policy on employee rights was outweighed by the employer’s “substantial and legitimate business justifications for its policy.” International Business Machines Corp., 265 NLRB 638, 638 (1982) (IBM). Subsequently, citing IBM, the Board announced the following generally applicable standard for adjudicating work-rule allegations: “In assessing the lawfulness of [an employer’s] rule, . . . we must deter- mine whether the rule reasonably tend[s] to coerce em- ployees in the exercise of their Section 7 rights, and, if so, whether the employees’ Section 7 rights are out- weighed by any legitimate and substantial business justi- fication for the rule.” Waco, Inc., 273 NLRB 746, 748 (1984); see also Scientific-Atlanta, Inc., 278 NLRB 622, 625 (1986) (recognizing that “Section 7 rights may be outweighed by an employer’s substantial and legitimate business justifications”). Following Waco, the Board repeatedly applied the standard it had announced in that case.31 The Board failed, however, to apply the governing standard consistently. In Cincinnati Suburban Press, 289 NLRB 966 (1988), an administrative law judge struck down two work rules without citing Waco or bal- ancing the rules’ reasonable tendency to interfere with the exercise of Section 7 rights against the newspaper’s legitimate justifications for maintaining them. Instead, the judge found the rules unlawful on the basis that they “fail[ed] to define the area of permissible conduct in a manner clear to employees.” Id. at 975. No Board prec- edent was cited as authority for this rationale. In adopt- ing the judge’s decision, the Board acknowledged the newspaper’s right to adopt rules that further its legitimate interests, but stated that such rules must be “narrowly tailored” and “unambiguous.” Id. at 966 n.2. As authori- ty, the Board cited Peerless Publications, 283 NLRB 334 (1987), an entirely inapposite case.32 31 See Franklin Iron & Metal Corp., 315 NLRB 819, 820 (1994), enfd. 83 F.3d 156 (6th 1996); Radisson Plaza Minneapolis, 307 NLRB 94, 94 (1992), enfd. 987 F.2d 1376 (8th Cir. 1993); Sweetwater Crafts, 300 NLRB 18, 21 (1990), enfd. mem. 929 F.2d 701 (6th Cir. 1991); Heck’s, Inc., 293 NLRB 1111, 1119 (1989); Elston Electronics Corp., 292 NLRB 510, 511, 529 (1989); Pontiac Osteopathic Hospital, 284 NLRB 442, 466 (1987). 32 The issue in Peerless Publications was whether the employer had violated Sec. 8(a)(5) by promulgating certain rules unilaterally, not whether it was violating Sec. 8(a)(1) by maintaining those rules. Cincinnati Suburban Press, in turn, spawned at least one further de- parture from Waco. See Advance Transportation Co., 310 NLRB 920, 925 (1993) (finding rule unlawful because it “fail[ed] to define the area of permissible employee conduct,” citing Cincinnati Suburban Press). STERICYCLE, INC. 21 B. The Board abandons the Waco balancing standard but continues to accord substantial weight to legitimate employer interests. In Lafayette Park Hotel, 326 NLRB 824 (1998), the Board abruptly abandoned the balancing standard it had announced in Waco and applied (although not with per- fect consistency) in subsequent cases. Citing only Re- public Aviation and the Supreme Court’s familiar lan- guage requiring the Board to “work[] out an adjustment” between employee and employer rights, the Board an- nounced the following standard: “In determining wheth- er the mere maintenance of rules . . . violates Section 8(a)(1), the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights.” Id. at 825. Lafayette Park Hotel cited no Board precedent for this standard, nor did it overrule Waco in relevant part or cases subsequent to Waco applying its balancing-of-employee-rights-and- employer-interests standard. Four members signed on to this test: Chairman Gould and Members Fox, Liebman, and Brame. Member Hurtgen did not endorse the test, stating that he “would not so limit the inquiry. If a rule reasonably chills the exercise of Sec[tion] 7 rights, it can nonetheless be lawful if [it] is justified by significant employer interests . . . .” Id. at 825 n.5. But although the Lafayette Park Hotel majority depart- ed from Waco’s balancing standard, it did not fail to ac- cord substantial weight to employers’ legitimate inter- ests. To be sure, the Board did not explain how it would achieve the “adjustment” of employee rights and em- ployer interests that Republic Aviation mandates with a standard that treats as solely relevant the tendency of a challenged rule to chill the exercise of Section 7 rights. Nevertheless, in analyzing the rules at issue in the case, the Board made clear that the required adjustment was to be accomplished in the application of the announced standard—an application that assumes a reasonable em- ployee very different from the one my colleagues place at the center of their decision. Seven rules were at issue in Lafayette Park Hotel. All five members found one of them, an off-duty access rule, unlawful as contrary to Tri-County Medical Center. A majority consisting of Chairman Gould and Members Fox and Liebman found a second rule unlawful, on the basis that controlling precedent (including Cincinnati Suburban Press) dictated that result; Members Hurtgen and Brame dissented. A different majority consisting of Chairman Gould and Members Hurtgen and Brame (“the majority”) found the remaining five rules lawful. Mem- bers Fox and Liebman, dissenting in part (“the dissent”), would have found all seven rules unlawful.33 33 Although, as noted, these were not the only majority and dissent- ing opinions in Lafayette Park Hotel, these are the only holdings that will be discussed hereinafter. The rationale of the majority in upholding five of the seven rules holds the key to understanding Lafayette Park Hotel (and, as shown below, the Board’s subse- quent decision in Lutheran Heritage as well). Again and again, this majority found the challenged rule would not reasonably tend to chill employees in exercising their Section 7 rights because reasonable employees would perceive the legitimate employer interests served by the rule and would read it in that light, not as prohibiting Section 7 activity.34 The majority rejected an analysis that finds ambiguity in a rule by “parsing” its language and reading particular phrases in isolation. 326 NLRB at 825. Dissenting in part, Members Fox and Liebman accused their colleagues of misapplying the announced standard. “While paying lip service to the appropriate standard,” they wrote, “our colleagues have applied that standard in such a way as to enable employers lawfully to maintain rules that have the likely effect of chilling Section 7 ac- tivity.” 326 NLRB at 830. In their view, all seven rules at issue were unlawful because “they are all overly broad and equally ambiguous as to their reach.” Id. The dis- sent repeatedly invoked the principle that ambiguity is construed against the drafter,35 and some variation of the words ambiguous or overbroad appears 22 times in their dissent. Echoing the rationale of the administrative law judge in Cincinnati Suburban Press, they concluded that “[e]ach [of the rules] fails to define the area of impermis- 34 See Lafayette Park Hotel, 326 NLRB at 825 (finding lawful a rule that prohibits “[b]eing uncooperative with supervisors, employees, guests and/or regulatory agencies or otherwise engaging in conduct that does not support the Lafayette Park Hotel’s goals and objectives” be- cause it “addresses legitimate business concerns” and therefore “em- ployees would not reasonably conclude that the rule as written prohibits Sec[.] 7 activity”); id. at 826 (finding lawful a rule that prohibits “[d]ivulging Hotel-private information to employees or other individu- als or entities that are not authorized to receive that information” be- cause “businesses have a substantial and legitimate interest in maintain- ing the confidentiality of private information, including guest infor- mation, trade secrets, contracts with suppliers, and a range of other proprietary information,” and employees “reasonably would understand that the rule is designed to protect that interest rather than to prohibit the discussion of their wages”); id. at 826–827 (finding lawful a rule that prohibits “[u]nlawful or improper conduct off the hotel’s premises or during non-working hours which affects the employee’s relationship with the job, fellow employees, supervisors, or the hotel’s reputation or good will in the community” because “[e]mployees reasonably would believe that this rule was intended to reach serious misconduct, not conduct protected by the Act”); id. at 827 (finding lawful a rule stating that “[e]mployees are not permitted to use the restaurant or cocktail lounge for entertaining friends or guests without the approval of the department manager” because “[t]here are legitimate business reasons for such a rule, and we believe that employees would recognize the rule for its legitimate purpose, and would not ascribe to it far-fetched mean- ings such as interference with Sec[.] 7 activity”); id. at 827–828 (find- ing lawful a rule stating that “[e]mployees are not allowed to fraternize with hotel guests anywhere on hotel property” because “[e]mployees would recognize the legitimate business reasons for which such a rule was promulgated, and would not reasonably believe that it reaches Sec[.] 7 activity” (footnote omitted)). 35 Id. at 830 n.1; id. at 832 & n.7. 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sible conduct in a manner clear to employees. As a result, each has a reasonable tendency to cause employees to refrain from engaging in protected activities.” Id. at 830. Turning to specific rules, the dissent found particular rules unlawful because they “could,” “may,” or “might” be understood to prohibit Section 7 activity.36 The dis- sent repeatedly isolated particular words and phrases and found challenged rules ambiguous and overbroad be- cause the words or phrases were not defined or otherwise limited.37 The dissent asserted that the dissenting mem- bers were not “precluding or restricting employers from achieving legitimate business objectives by imposing work rules governing employee conduct,” but that those rules must be “narrowly and precisely drawn to define the proscribed conduct,” id. at 833, and “eliminate ambi- guity,” id. at 834, in order to withstand Board review.38 The key votes in Lafayette Park Hotel were Chairman Gould’s—it was his vote that tipped the balance in the Hotel’s favor on five of the seven contested rules—and the Chairman wrote separately to explain his disagree- ment with his colleagues. He turned their criticism back on themselves, faulting them for “fail[ing] to apply the appropriate standard” by “view[ing] these rules through the eye of a sophisticated labor lawyer” and “focus[ing] on whether any language in the rules could theoretically encompass Section 7 activity,” rather than viewing them 36 See, e.g., id. at 831 (finding rule prohibiting “conduct that does not support the Lafayette Park Hotel’s goals and objectives” unlawful because the “failure to define the hotel’s ‘goals and objectives’ is over- broad and ambiguous and reasonably could lead employees to believe that [the rule] prohibits protected activity”; employees “might . . . con- clude that any concerted protest of current terms and conditions of employment . . . would violate the . . . rule”) (emphasis added); id. at 832 (finding rule against “[d]ivulging Hotel-private information” un- lawful because the term “Hotel-private” is “undefined” and therefore “could reasonably lead employees to believe that the standard prohibits discussion among employees concerning wages, benefits, and other terms and conditions of employment”; “[a]lthough employers may have a substantial and legitimate interest in limiting or prohibiting discussion of some aspects of their affairs,” the rule “fails to clearly define the impermissible conduct” and therefore “employees may reasonably believe that protected activity is prohibited”) (emphasis added); id. at 833 (“[B]ecause each rule is susceptible to doubt as to its coverage, each reasonably could lead an employee to refrain from protected activ- ity for fear of breaking the rule and incurring disciplinary penalty.”) (emphasis added). 37 See id. at 831 (considering the phrase goals and objectives in iso- lation); id. at 832 (considering the term Hotel-private in isolation); id. at 833 (considering the word fraternize in isolation). 38 The majority decision in Lafayette Park Hotel—in the section that all five members joined, involving an overbroad off-duty access rule— also invoked the principle that ambiguity is construed against the draft- er. 326 NLRB at 828. But the majority repeatedly made clear that their understanding of that principle had nothing in common with that of the dissent. See id. at 825 (finding “no ambiguity” in a rule where “any arguable ambiguity arises only through parsing the language of the rule, viewing [a particular] phrase . . . in isolation, and attributing to the [r]espondent an intent to interfere with employee rights”); id. at 827 (finding a rule “not ambiguous” despite containing an “undefined term” because “[e]mployees would recognize the legitimate business reasons for which such a rule was promulgated, and would not reasonably believe that it reaches Sec[.] 7 activity”). from the standpoint of a “reasonable employee,” who would perceive their “obvious meaning and intent.” “In short,” he concluded, it is not enough to find that certain language in a rule is broad enough to arguably apply to Section 7 activity. The appropriate inquiry must center on whether a rea- sonable employee could believe that the rule prohibits protected activity. When the rules have an obvious in- tent, they cannot be found unlawful by parsing out cer- tain words and creating theoretical definitions that dif- fer from the obvious ones. If that were the standard, virtually all of the work rules in today’s workplace could be deemed violative of our Act unless they ex- plicitly state that they do not apply to Section 7 activity. Id. at 830. Before moving on to Lutheran Heritage, I must point out that the dissent painted a misleading picture of Board law in their Lafayette Park Hotel dissent. The dissent indicated that “Board precedent holds that the mere maintenance of an ambiguous or overly broad rule is unlawful because it tends to inhibit employees from en- gaging in otherwise protected activity.” 326 NLRB at 831. Although some Board decisions stand for that one- sided proposition, others do not, including Waco and a number of post-Waco decisions recognizing that an overbroad rule is lawful if justified by substantial and legitimate employer interests that outweigh its potential adverse effect on the exercise of Section 7 rights.39 Moreover, the cases cited in the dissent in support of its representation of what “Board precedent holds”—Ingram Book Co., 315 NLRB 515 (1994), and J. C. Penney Co., 266 NLRB 1223 (1983)—do not stand for the broad proposition the dissenters assert.40 C. The Board adheres to and refines the Lafayette Park Hotel standard, over a dissent that echoes the Lafayette Park Hotel dissent. In Lutheran Heritage, the Board adhered to the stand- ard that was announced in Lafayette Park Hotel, stating that “to determine whether mere maintenance of certain 39 See supra n.31. 40 At issue in Ingram Book was a no-distribution rule that prohibited distributing literature “at any time except during Company-authorized fund-raising drives,” 315 NLRB at 515, and in dispute in J. C. Penney was a no-solicitation rule prohibiting solicitation “in the store at any time,” 266 NLRB at 1223. The latter rule was plainly unlawful under longstanding precedent applicable to retail stores, see, e.g., Marshall Field & Co., 98 NLRB 88 (1952), enfd. 200 F.2d 375 (7th Cir. 1953); the former rule was as plainly unlawful under Stoddard-Quirk, 138 NLRB at 615, and Our Way, 268 NLRB at 394. Ingram Book and J. C. Penney are properly read as limited to those narrow issues, controlled by well-settled precedent, not as stating a rule broadly applicable to work-rule issues generally. Indeed, those cases cannot be read to stand for the proposition that ambiguity and overbreadth without more render maintenance of a rule unlawful without bringing them into conflict with Waco, which expressly requires that the adverse impact of a challenged rule on the exercise of Sec. 7 rights be balanced against the legitimate employer interests the rule advances. STERICYCLE, INC. 23 work rules violates Section 8(a)(1) of the Act, ‘the ap- propriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights.’” 343 NLRB at 646 (quoting Lafayette Park Ho- tel, 326 NLRB at 825). The Board also adhered to Lafa- yette Park Hotel’s insistence that rules be given “a rea- sonable reading” and that the Board “refrain from read- ing particular phrases in isolation.” Id. (citing Lafayette Park Hotel, 326 NLRB at 825, 827). But the Lutheran Heritage Board mediated Lafayette Park Hotel’s “rea- sonable tendency to chill” test through a multipronged standard that further defined how and when the mainte- nance of a work rule would have that reasonable tenden- cy. The Board identified four ways in which the mainte- nance of a rule may violate the Act, three of which do not concern us here.41 Pertinent to this case is prong one of the Lutheran Heritage standard, under which a work rule is unlawful to maintain if “employees would reasonably construe the language to prohibit Section 7 activity.” Id. at 647. Like the “reasonable tendency to chill” standard of Lafayette Park Hotel, the “would reasonably construe” standard of Lutheran Heritage appears on its face to make the employee-rights side of the Republic Aviation balance solely relevant to the analysis. But like the ma- jority in Lafayette Park Hotel, the Lutheran Heritage majority accommodated employers’ legitimate interests in their application of the announced standard. And again like Lafayette Park Hotel’s majority, the Lutheran Heritage decision assumed a reasonable employee whol- ly unlike the one my colleagues posit, recognizing that, where challenged rules serve legitimate employer inter- ests, “reasonable employees . . . . would realize the law- ful purpose of the challenged rules” and read them in that light, not as prohibiting Section 7 activity. Id. at 648. Where a challenged rule “does not refer to Section 7 ac- tivity,” the Board explained, “we will not conclude that a reasonable employee would read the rule to apply to such activity simply because the rule could be interpreted that way. To take a different analytical approach would re- quire the Board to find a violation whenever the rule could conceivably be read to cover Section 7 activity, even though that reading is unreasonable. We decline to take that approach.” 343 NLRB at 647 (emphasis in original). Accordingly, under the Lutheran Heritage “would reasonably construe” standard, a rule is not un- lawful to maintain merely because it is ambiguous or overbroad and thus could be read to restrict the exercise of Section 7 rights. There is, however, an important difference between Lutheran Heritage and Lafayette Park Hotel. As noted 41 Those three are where the rule (1) explicitly restricts Sec. 7 activi- ty, (2) was promulgated in response to union activity, or (3) has been applied to restrict the exercise of Sec. 7 rights. 343 NLRB at 646–647. In AT&T Mobility, LLC, 370 NLRB No. 121 (2021), the Board over- ruled the “applied to restrict” prong of Lutheran Heritage. above, the section of the Lafayette Park Hotel decision in which all five members joined included a reference to the ambiguity principle, i.e., the principle that ambiguity is construed against the drafter. The majority in Layfayette Park Hotel did not address this issue because it found the particular rules at issue were not ambiguous,42 but Lu- theran Heritage rejected application of the ambiguity principle in the work-rules context. A statement is am- biguous if it could be interpreted in more than one way, but the Lutheran Heritage majority held that where a work rule does not refer to Section 7 activity, an employ- er does not violate the Act by maintaining it merely be- cause the rule could be read to refer to such activity, i.e., merely because it is ambiguous. Properly understood, then, Lutheran Heritage implicitly overruled Lafayette Park Hotel in this critical respect. For their part, the dissenters in Lutheran Heritage re- prised the rationale of the Lafayette Park Hotel dissent. Invoking the principle that ambiguity is construed against the drafter, 343 NLRB at 650, the dissenting Board members would have held that a rule that can be read to prohibit Section 7 activity cannot be lawfully maintained. They rejected their colleagues’ accommoda- tion of the employer’s interests within the perspective of a reasonable employee who understands the legitimate purpose served by a necessarily general work rule and therefore would not read the rule to prohibit Section 7 activity merely because it could be read that way. They also rejected the majority’s assertion that particular words and phrases ought not be considered in isolation.43 Although the dissent gave lip service to employers’ right to maintain rules that protect their legitimate interests, it insisted that this right “is appropriately subject to the requirement that employers articulate those rules with sufficient specificity that they do not impinge on em- ployees’ free exercise of Section 7 rights.” Id. at 652. In other words, ambiguity without more condemns a rule, and employers must narrowly tailor their rules to prohibit only unprotected activity, eradicating any possibility that a rule might be interpreted to prohibit Section 7 activity. Thus, the position of the dissent in Lafayette Park Hotel was consistent with the dissent in Lutheran Heritage. D. The Board effectively overrules Lutheran Heritage, while claiming to apply it, by applying the Lutheran Her- itage and Lafayette Park Hotel dissents instead. Lutheran Heritage issued in 2004. By 2011, however, the Board was erroneously professing to apply the Lu- theran Heritage standard while actually applying the Lafayette Park Hotel and Lutheran Heritage dissents. The first such decision was 2 Sisters Food Group, Inc., 357 NLRB 1816, 1816 (2011), where the majority found 42 See supra n.38. 43 See 343 NLRB at 650 (considering the phrases abusive language and verbal abuse in isolation); id. at 651 (considering the word harass- ment in isolation). 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the employer violated Section 8(a)(1) by maintaining a rule that made “inability or unwillingness to work har- moniously with other employees” grounds for discipline. Citing Lutheran Heritage as the applicable standard, the majority nevertheless relied for their finding on the rule’s “patent ambiguity,” the fact that the rule “[did] not define what it means to ‘work harmoniously’ (or fail to do so),” and the observation that the rule was “sufficiently impre- cise that it could encompass any disagreement or conflict among employees, including those related to discussions and interactions protected by Section 7.” Id. at 1817. The majority invalidated the rule because it was ambigu- ous and not narrowly tailored to exclude any possibility of being interpreted to restrict Section 7 activity. In oth- er words, they applied the very standard endorsed by the Lafayette Park Hotel and Lutheran Heritage dissents. Indeed, by finding the rule unlawful notwithstanding the wholly legitimate interest it served—to promote a civil and decent workplace, as Member Hayes pointed out in dissent, id. at 1829—because it “could encompass” Sec- tion 7 activity, id. at 1817 (emphasis added), the 2 Sisters majority plainly relied on a rationale that directly contra- dicted the very Lutheran Heritage standard they purport- ed to apply. See Lutheran Heritage, 343 NLRB at 647 (“Where . . . the rule does not refer to Section 7 activity, we will not conclude that a reasonable employee would read the rule to apply to such activity simply because the rule could be interpreted that way.”) (emphasis in origi- nal).44 Throughout the period between August 2013 and end- ing August 2017,45 the Board continued to claim to apply the Lutheran Heritage standard while actually applying the Lutheran Heritage and Lafayette Park Hotel dissents. Over the course of those years, the Board issued at least nineteen decisions that effectively applied those dissents by reading particular phrases in isolation, requiring that rules be narrowly tailored to exclude any possible inter- pretation that would impinge on Section 7 rights, and/or invoking the principle that ambiguity is construed against the employer as the drafter of the challenged rule.46 Typ- 44 In subsequent cases, the majority was more circumspect in their choice of language. Typically (but not invariably), they parroted the Lutheran Heritage “would reasonably construe” standard by using “would” and avoiding “could,” while nevertheless effectively applying the Lutheran Heritage dissent, as detailed below. 45 I am disregarding work-rule cases issued in 2012 and the first 7 months of 2013, when the Board’s membership included individuals whose appointments were constitutionally infirm. See NLRB v. Noel Canning, 573 U.S. 513 (2014). 46 See Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38, slip op. at 2, 3 (2017) (finding rules unlawful to maintain based on overbreadth / absence of limiting language), remanded on other grounds mem. 2020 U.S. App. LEXIS 3001 (9th Cir. Jan. 30, 2020); G4S Secure Solutions (USA) Inc., 364 NLRB 1327, 1332 (2016) (find- ing social-media policy unlawful to maintain “[i]n the absence of any basis for finding that the rule is tailored to protect a legitimate privacy concern”) (emphasis added); id. at 1332 n.16 (“Nothing in our decision prevents the [r]espondent from promulgating a more narrowly tailored rule.”), enfd. mem. per curiam 707 Fed.Appx. 610 (11th Cir. 2017); Grill Concepts Services, 364 NLRB 385, 404 (2016) (“[A]mbiguities are construed against [the] promulgator [of the rule].”), petition for review granted in part & remanded mem. 722 Fed.Appx. 1 (D.C. Cir. 2018); Long Island Association for AIDS Care, Inc., 364 NLRB 209, 215 n.6 (2016) (“‘Board law is settled that ambiguous employer rules— rules that reasonably could be read to have a coercive meaning—are construed against the employer.’”) (quoting Flex Frac Logistics, LLC, 358 NLRB 1131, 1132 (2012), enfd. 746 F.3d 205 (5th Cir. 2014)) (emphasis added), enfd. mem. 696 Fed.Appx. 556 (2d Cir. 2017); Schwan’s Home Service, 364 NLRB 170, 172 (2016) (“It is well estab- lished that . . . ambiguity is construed against the [r]espondent as the drafter of the rule . . . .”); Spring Valley Hospital Medical Center, 363 NLRB 1766, 1766 (2016) (“[A]ny ambiguity in the rule must be con- strued against the drafter . . . .”), vacated & remanded on other grounds mem. 2018 U.S. App. LEXIS 17988 (9th Cir. June 29, 2018); T-Mobile USA, Inc., 363 NLRB 1638, 1639 (2016) (same); id. at 1639–1640 (finding rule that states “[e]mployees are expected to maintain a posi- tive work environment” unlawful to maintain because it “is not limited to conduct that would objectively be viewed as unprotected,” i.e., be- cause it is not narrowly tailored), enf. denied in part 865 F.3d 265 (5th Cir. 2017); William Beaumont Hospital, 363 NLRB 1543, 1546 (2016) (“That a particular rule threatens to have a chilling effect does not mean . . . that an employer may not address the subject matter of the rule and protect his legitimate business interests. When the Board finds a rule unlawfully overbroad, the employer is free to adopt a more narrowly tailored rule that does not infringe on Section 7 rights.”); Whole Foods Market, Inc., 363 NLRB 800, 801 (2015) (“Any ambiguity in a rule must be construed against the promulgator of the rule . . . .”); id. at 802- 803 n.9 (“We do not hold that an employer is prohibited from maintain- ing any rules regulating recording in the workplace. We hold only that those rules must be narrowly drawn . . . .”), enfd. mem. 691 Fed.Appx. 49 (2d Cir. 2017); Rocky Mountain Eye Center, P.C., 363 NLRB 325, 331 (2015) (“[A]mbiguities are construed against [the] promulgator.”); UPMC, 362 NLRB 1704, 1704–1705 n.5 (2015) (adopting judge’s finding that employer’s email policy was unlawful to maintain “based on its ambiguity”); id. (rejecting dissenting member’s position that employees would read rule prohibiting the use of UPMC’s logos or other copyrighted or trademarked materials as directed to the protection of the hospital’s intellectual property because “the provision does not, by its terms, limit itself to violations of intellectual property law”); Rio All-Suites Hotel & Casino, 362 NLRB 1690, 1690 (2015) (“[A]ny ambiguity in the rule must be construed against the drafter . . . .”); Sheraton Anchorage, 362 NLRB 1038, 1038 n.4 (2015) (“[T]o the extent the rule is ambiguous, the ambiguity ‘must be construed against the employer as the promulgator of the rule.’”) (quoting Hyundai Amer- ica Shipping Agency, 357 NLRB 860, 870 (2011), enf. denied in part 805 F.3d 309 (D.C. Cir. 2015)); Lily Transportation Corp., 362 NLRB 406, 406 n.3 (2015) (“To the extent the rule was ambiguous . . . , the burden of that ambiguity must be borne by the [r]espondent.”); Battle’s Transportation, Inc., 362 NLRB 125, 126 (2015) (considering phrases “human resources related information” and “investigations by outside agencies” in isolation); Lytton Rancheria of California d/b/a Casino San Pablo, 361 NLRB 1350, 1351 (2014) (“[A]mbiguous employer rules—rules that reasonably could be read to have a coercive mean- ing—are construed against the employer.”) (emphasis added); Purple Communications, Inc., 361 NLRB 575, 576 (2014) (adopting judge’s finding that employer violated the Act by maintaining “no-disruptions” rule for the reasons stated by the judge); 583 (finding “no-disruptions” rule unlawful because it “does not define or limit the meaning of ‘dis- ruption’ or state that it is not intended to refer to Section 7 activity”); Fresh & Easy Neighborhood Market, 361 NLRB 72, 73 (2014) (finding rule requiring employees to “keep customer and employee information secure” unlawful because the rule contains “no language limiting the types of employee information that employees may not disclose”); Laurus Technical Institute, 360 NLRB 1155, 1163 (“[I]f the suspect rule could be considered ambiguous, any ambiguity in the rule must be construed against the employer as the promulgator of the rule.”), peti- tion for review dismissed 2015 U.S. App. LEXIS 6244 (D.C. Cir. Mar. 16, 2015). STERICYCLE, INC. 25 ically, Lafayette Park Hotel was cited as authority for the latter proposition, even though it was or should have been apparent that this principle, as applied to rules- maintenance issues, did not survive Lutheran Heritage. An ambiguous rule is one that could be interpreted in more than one way, and the Lutheran Heritage majority rejected the notion that a reasonable employee would read a facially neutral rule to refer to Section 7 activity merely because the rule could be read that way, i.e., merely because it is ambiguous. 343 NLRB at 647. My colleagues soft-pedal the Board’s post–Lutheran Heritage work-rule decisions. Rather than frankly admit that the Board, claiming to apply Lutheran Heritage, actually applied the standard set forth in the Lafayette Park Hotel dissent and the Lutheran Heritage dissent, they assert that there was “some degree of confusion and disagreement about [the] proper application” of Lutheran Heritage during those years. In support of this character- ization, they cite just two contrasting decisions— Flagstaff Medical Center, 357 NLRB 659 (2011),47 and Hyundai America Shipping Agency—as though they are illustrative of the Board’s 2011–2017 work-rule deci- sions as a whole. In reality, however, Flagstaff Medical Center was an isolated instance in which the majority correctly applied the actual Lutheran Heritage standard. I disagree with my colleagues’ assertion that this one decision in 2011 was representative of “some degree of confusion” for the following 6 years, during which the Board failed to properly apply the governing standard even once. Accordingly, when the Board overruled Lutheran Her- itage in its December 2017 decision in Boeing, it was Numerous as they were, these cases fall far short of reflecting the full extent of the Agency’s overly aggressive policing of work rules during this period because they do not capture the many cases alleging rules-maintenance violations that settled after charges were found meri- torious. See “Report of the General Counsel Concerning Employer Rules,” GC Memorandum 15-04 (March 18, 2015) (discussing 57 rules the General Counsel had deemed unlawful). Neither do they capture the extensive policing that took place in the course of unfair labor prac- tice charge investigations. See “Report on the Midwinter Meeting of the ABA Practice and Procedure Committee of the Labor and Employ- ment Law Section,” GC Memorandum 15-05, at 15 (March 18, 2015), reporting General Counsel Griffin’s responses to questions about re- gional investigative processes: Question: “Is there a uniform policy on requesting employers to produce entire employee handbooks when a pending charge pertains to only certain provisions of the handbook?” Answer: “Yes, when documents, such as employee handbooks and/or work rules are relevant to an investigation, Regions are instructed to obtain copies of these documents, rather than relying on excerpts that the parties may have submitted.” Question: “When the Region is re- viewing a charge alleging that a specific provision of an employee handbook is unlawful, does the Region affirmatively look for other potentially unlawful provisions?” Answer: “No, but, if in examining such documents to investigate alleged violations, the Region notices unalleged provisions that may be facially unlawful, Regions are in- structed to bring this potential issue to the attention of the Charging Party, who may amend the charge or file a new charge . . . .” 47 Petition for review granted in part on other grounds 715 F.3d 928 (D.C. Cir. 2013). responding more to what Lutheran Heritage had come to stand for through misapplication than to Lutheran Herit- age itself. It must be acknowledged that both Lutheran Heritage and Lafayette Park Hotel were vulnerable to being exploited in this way. The standards announced in those cases on their face considered only the “employee rights” side of the Republic Aviation balance, leaving the employer’s legitimate interests to be accommodated in the application of the standard. This made it all too easy for Board majorities that disagreed with the approach taken by the majority in Lafayette Park Hotel and the Board in Lutheran Heritage but were unable or unwilling to overrule either decision outright, to assert that they were applying Lutheran Heritage even though their analyses and the conclusions resulting therefrom were antithetical to that decision. With the Lutheran Heritage standard thus muddled and compromised, the Board reasonably decided that the best way to work out the Court-mandated “adjustment” of Section 7 rights and legitimate employer interests was to throw out Lutheran Heritage altogether and start over with a standard that explicitly balances those rights and interests, as the Board had done in IBM and Waco.48 E. The Board returns its work-rules jurisprudence to its traditional and judicially required practice of according substantial weight to both employee rights and legitimate employer interests. Although it has not been its invariable practice, the Board’s predominant approach to resolving disputes over the lawfulness of challenged work rules has been to ac- cord substantial weight to both sides of the Republic Avi- ation balance. The Board has done so in different ways over the years. As shown above, it has done so by ex- pressly requiring a balancing of employee rights and em- ployer interests, as in IBM and Waco. And it has done so by accommodating employers’ legitimate interests in the application of a standard that on its face appeared to con- sider only employee rights, as in Lafayette Park Hotel 48 Even after the Board made it unmistakably clear in Boeing, 365 NLRB No. 154, slip op. at 9–10 n.43, that it rejected the principle that ambiguity without more makes maintenance of a rule unlawful— indeed, that the principle was contrary to the majority decision in Lu- theran Heritage itself—some administrative law judges continued to apply that principle to decide rules-maintenance allegations. See Lhoist North America of Alabama, LLC, 2020 NLRB LEXIS 311, at *79 (May 21, 2020) (“Any ambiguity in the rules must be construed against the drafter.”); Maine Coast Memorial Hospital, 2018 NLRB LEXIS 528, at *65 (Nov. 2, 2018) (same); Lowe’s Home Centers, LLC, 368 NLRB No. 133, slip op. at 5 (2019) (same, in judge’s decision issued Apr. 17, 2018). Other judges’ decisions continued post-Boeing to invoke the Lutheran Heritage dissenters’ insistence that rules be narrowly tailored. See Intertape Polymer Corp., 2023 NLRB LEXIS 72, at *12 (Feb. 17, 2023) (“Rules inhibiting Section 7 rights must be narrowly tailored to address the employer’s concerns.”); United Scrap Metal, Inc., 2022 NLRB LEXIS 15, at *47 (Jan. 18, 2022) (“An employer has a legiti- mate interest in ensuring the safety of its operations, but rules regulat- ing the use of electronic devices must be narrowly tailored to address such concerns.”). 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Lutheran Village. But under either of these ap- proaches, legitimate employer interests advanced by work rules played an important role in the determination, and the mere fact that a challenged rule could be con- strued to limit Section 7 activity was insufficient to make maintenance of the rule unlawful. The Board departed, however, from this traditional approach beginning with its 2011 decision in 2 Sisters Food Group, as shown above. With Boeing, the Board returned to its historically pre- dominant practice of adjudicating work-rule allegations by according substantial weight to both sides of the Re- public Aviation balance. It did so by adopting a standard that expressly balances employee rights against legiti- mate employer interests. Under the balancing standard adopted in Boeing and refined in LA Specialty Produce, if a challenged rule, reasonably interpreted, does not in- terfere with the exercise of a Section 7 right, it is lawful to maintain; if it does, its lawfulness depends on whether or not the interference is outweighed by the rule’s legiti- mate justifications. In addition, LA Specialty Produce defined the “reasonable employee” from whose perspec- tive a challenged rule is to be viewed. My colleagues criticize Boeing, and they reject LA Specialty Produce’s definition of the “reasonable employee.” As explained below, I disagree with their criticisms. First, the Boeing/LA Specialty Produce balancing standard accords with judicial precent. Nearly 80 years ago, the Supreme Court held the Board duty-bound to “work[] out an adjustment between” employee rights under the Act and employers’ right to maintain rules that advance their legitimate interests,49 and subsequent deci- sions of the Court support the view that this “adjustment” entails balancing employee rights and legitimate em- ployer interests.50 When the Board failed to do so and invalidated work rules based solely on their adverse im- pact on the exercise of Section 7 rights, the First, Third, and Eighth Circuits corrected the misstep. In doing so, the courts took the position that Supreme Court prece- dent mandates a balancing analysis.51 49 Republic Aviation v. NLRB, 324 U.S. at 797–798. 50 See NLRB v. Great Dane Trailers, Inc., 388 U.S. at 33–34 (em- phasizing the Board’s “duty to strike the proper balance between . . . asserted business justifications and the invasion of employee rights in light of the Act and its policy”); NLRB v. Erie Resistor Corp., 373 U.S. at 229 (referring to the Board’s “delicate task” of “weighing the inter- ests of employees in concerted activity against the interest of the em- ployer in operating his business in a particular manner and of balancing . . . the intended consequences upon employee rights against the busi- ness ends to be served by the employer’s conduct”). 51 See, e.g., McDonnell Douglas Corp. v. NLRB, 472 F.2d at 545 (Eighth Circuit criticized the Board’s failure to balance the challenged rule’s adverse impact on the exercise of Sec. 7 rights against the em- ployer’s legitimate and substantial interest in safeguarding secret opera- tions critical to the national defense); Jeannette Corp. v. NLRB, 532 F.2d at 918–919 (Third Circuit affirmed the Board’s finding that the challenged rule was unlawful, but stated that the applicable standard requires balancing the rule’s adverse effect on employee rights against the employer’s asserted business justifications); Texas Instruments, Inc. Second, the Boeing/LA Specialty Produce balancing standard also accords with the predominant through-line of the Board’s work-rules precedent by giving substantial weight to legitimate employer interests. Although the Board has accommodated employer interests in varying ways—by adopting, for specific types of rules, standards that countenance significant limits on Section 7 activity in order to protect employers’ legitimate interests;52 by formulating standards that on their face seemed to make employee rights solely relevant but nevertheless accom- modating employers’ legitimate interests in applying those standards;53 or by adopting a standard that express- ly balanced employee rights and legitimate employer interests54—it has generally accorded substantial weight to both sides of the Republic Aviation balance. To be sure, it has not done so invariably, and its most notable failure in this regard were its work-rule decisions from 2011 to 2017, as explained above. But an unbalanced emphasis on employee rights in its work-rules jurispru- dence, at the expense of legitimate employer interests, has been more the exception than the rule over the course of the Board’s history. Third, the definition of the “reasonable employee” in LA Specialty Produce simply made explicit the Board’s tacit understanding in both Lafayette Park Hotel and Lu- theran Heritage. Both the Fox/Liebman dissent in Lafa- yette Park Hotel and the dissent in Lutheran Heritage made a point of establishing that the rules at issue in those cases could have been interpreted to restrict Sec- tion 7 activity. Yet the majority in Lafayette Park Hotel and the decision in Lutheran Heritage were adamant that reasonable employees would not read them that way be- cause they would understand the legitimate interests ad- vanced by those rules and would interpret them in that light.55 Implicit in their rationale was a definition of the “reasonable employee” that LA Specialty Produce simply made explicit: one “who is ‘aware of his legal rights but who also interprets work rules as they apply to the eve- v. NLRB, 599 F.2d at 1073 (First Circuit remanded for the Board to apply the balancing standard announced by the Third Circuit in Jean- nette Corp.). 52 Tri-County Medical Center, 222 NLRB at 1089 (rules governing access for off-duty employees); Stoddard-Quirk Manufacturing Co., 138 NLRB at 616, 621–622 (no-distribution rules); Peyton Packing Co., 49 NLRB at 843 (no-solicitation rules). Like the Board’s deci- sions in these cases, Boeing is based on the principle that a workplace rule may be lawful to maintain notwithstanding that it limits employees in the exercise of their rights under Sec. 7, where such limitation is warranted by legitimate employer justifications that outweigh those rights. 53 Lutheran Heritage Village–Livonia, 343 NLRB at 646; Lafayette Park Hotel, 326 NLRB at 824. 54 LA Specialty Produce Co., 368 NLRB No. 93; Boeing Co., 365 NLRB No. 154; Waco, Inc., 273 NLRB at 748; IBM, 265 NLRB at 638. 55 See Lafayette Park Hotel, 326 NLRB at 825–828; Lutheran Herit- age, 343 NLRB at 647–648. STERICYCLE, INC. 27 rydayness of his job,’” and who “‘does not view every employer policy through the prism of the NLRA.’”56 Fourth, the system of categories that Boeing intro- duced promised, over time, to provide employers with “certainty beforehand” that particular types of rules would or would not pass muster. See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 679 (1981) (observing that management “must have some degree of certainty beforehand as to when it may proceed to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice”). By contrast, my col- leagues’ decision today fails to provide any real guidance to our constituents with regard to the legality of facially- neutral work rules maintained by employers. It inevita- bly follows this lack of guidance will result in more liti- gation over this issue, which in turn will require the Agency to devote more of its limited resources on litiga- tion that could have been avoided. Finally, the Boeing/LA Specialty Produce balancing standard, applied in tandem with LA Specialty Produce’s definition of the “reasonable employee,” is sound as a matter of policy. It treats employees as the mature and intelligent adults they are. It safeguards the exercise of Section 7 rights, while allowing employers to protect their legitimate interests without demanding an impossi- ble-to-achieve linguistic precision. And it accommo- dates the reality that work rules “are necessarily general in nature” (as the Lutheran Heritage majority recog- nized)57 and cannot eradicate every last possibility that isolated words or phrases might be interpreted as refer- ring to Section 7 activity (as Chairman Gould recog- nized).58 In other words, Boeing and LA Specialty Pro- duce are faithful to the Lutheran Heritage Board’s recognition that, whatever its merits as applied in other contexts, the ambiguity principle ought not apply in work-rules cases. F. The newly adopted standard is defective on multiple grounds. The standard my colleagues have adopted is objection- able on several grounds, including, as already discussed, the fact that my colleagues mischaracterize their standard as a modified version of Lutheran Heritage, when in reality it is virtually indistinguishable from the position taken by the dissent in Lutheran Heritage as well as the Fox/Liebman dissent in Lafayette Park Hotel. For the additional reasons set forth below, I disagree that their standard, even if properly characterized, is appropriate. 56 368 NLRB No. 93, slip op. at 2 (quoting T-Mobile USA, Inc. v. NLRB, 865 F.3d 265, 271 (5th Cir. 2017)). 57 Lutheran Heritage, 343 NLRB at 648. 58 Lafayette Park Hotel, 326 NLRB at 830 (Chairman Gould, further concurring) (“When the rules have an obvious intent, they cannot be found unlawful by parsing out certain words and creating theoretical definitions that differ from the obvious ones. If that were the standard, virtually all of the work rules in today’s workplace could be deemed violative of our Act . . . .”). Despite my colleagues’ claim to the contrary, judicial precedent does not support the majority’s standard. The majority cites Republic Aviation in support of their posi- tion—specifically, language in the Court’s decision re- garding the “dominant purpose” of the Act, which the Board “is to foster”: “the right of employees to organize for mutual aid without employer interference.” 343 U.S. at 798. But, as discussed above, the Republic Aviation decision expressly held that it is the Board’s duty to “work[] out an adjustment” between employees’ rights and the “equally undisputed right of employers to main- tain discipline in their establishments.” Id. at 797–798. As explained above, a standard that relegates the ac- commodation of employer rights to an affirmative de- fense that will rarely if ever be successfully established, as does the majority’s standard, does not constitute a reasonable “adjustment” of competing rights. And it does not remotely accomplish the Board’s “delicate task” of balancing employee rights and legitimate employer interests, which the Court emphasized elsewhere, NLRB v. Erie Resistor Corp., 373 U.S. at 229, and which three circuit courts have held that the Board is required to un- dertake.59 My colleagues assert that “[d]uring the 13 years when the Lutheran Heritage standard was in place,” no review- ing court rejected the Lutheran Heritage standard, and they cite a number of cases in support.60 Of course, this s the question by assuming that the Lutheran Heritage standard was in place for 13 years. As I have shown, it was not. But setting that aside, the circuit court cases my colleagues cite fail to help their cause, for several rea- sons. First, in the overwhelming majority of those cases, the court merely stated, or stated and applied, the Lutheran Heritage “would reasonably construe” standard without any indication that any party had challenged it. Accord- ingly, in most of those cases, the standard itself was not at issue. Moreover, in the rare instances when the stand- ard itself was challenged, the courts’ endorsement of it was tepid at best. See G4S Secure Solutions, Inc. v. 59 As shown above, the First, Third, and Eighth Circuits all rejected a one-sided analysis of work rules that focused on their potential interfer- ence with Sec. 7 rights and failed to balance those rights against the legitimate employer interests challenged rules advanced. See Texas Instruments, Inc. v. NLRB, 599 F.2d at 1067; Jeannette Corp. v. NLRB, 532 F.2d at 916; McDonnell Douglas Corp. v. NLRB, 472 F.2d at 539. 60 G4S Secure Solutions Inc. v. NLRB, 707 Fed.Appx. 610 (11th Cir. 2017); Midwest Division–MMC, LLC v. NLRB, 867 F.3d 1288 (D.C. Cir. 2017); T-Mobile USA, Inc. v. NLRB, 865 F.3d 265 (5th Cir. 2017); Care One at Madison Avenue, LLC v. NLRB, 832 F.3d 351 (D.C. Cir. 2016); Quicken Loans, Inc. v. NLRB, 830 F.3d 542 (D.C. Cir. 2016); Three D, LLC v. NLRB, 629 Fed.Appx. 33 (2d Cir. 2015); World Color (USA) Corp. v. NLRB, 776 F.3d 17 (D.C. Cir. 2015); Flex Frac Logis- tics, LLC v. NLRB, 746 F.3d 205 (5th Cir. 2014); NLRB v. Arkema, Inc., 710 F.3d 308 (5th Cir. 2013); NLRB v. Northeastern Land Ser- vices, Ltd., 645 F.3d 475 (1st Cir. 2011); Auto Workers v. NLRB, 520 F.3d 192 (2d Cir. 2008); Cintas Corp. v. NLRB, 482 F.3d 463 (D.C. Cir. 2007); Guardsmark, LLC v. NLRB, 475 F.3d 369 (D.C. Cir. 2007). 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB, 707 Fed.Appx. at 613 n.2 (stating that because a prior panel had approved the Lutheran Heritage test, the court was “‘bound to follow [that approval] regardless of our view of [its] correctness’”) (quoting United States v. Doyle, 857 F.3d 1115, 1119 (11th Cir. 2017) (alterations in G4S)); NLRB v. Northeastern Land Services, Ltd., 645 F.3d at 483 (“Some may think this result unattractive, but the Board’s [Lutheran Heritage] rule is intended to be prophylactic and in any event is subject to deference.”).61 Second, one of the circuit court cases the majority cites as upholding Lutheran Heritage did not present a rules- maintenance issue at all. In Care One at Madison Ave- nue, LLC v. NLRB, 832 F.3d at 351, the issue was wheth- er the employer violated the Act by posting a memo that reminded employees of the employer’s workplace vio- lence prevention policy. The theory of the violation was that by posting the memo just 3 days after a representa- tion election that concluded a peaceful organizing cam- paign devoid of workplace violence, the employer effec- tively threatened employees that “taking a position in the workplace regarding union rights” would be viewed as violence and incur discipline. Id. at 363. Thus, the un- fair labor practice at issue was an 8(a)(1) threat, and the court emphasized that the workplace violence prevention policy itself was not at issue. Id. Third, some of the circuit court cases my colleagues rely on actually militate against their decision. In Cintas Corp. v. NLRB, the Court of Appeals for the District of Columbia Circuit cited and applied Lutheran Heritage, but in doing so, it quoted with approval language from that decision emphasizing that a reasonable employee would not read a challenged rule to apply to Section 7 activity “‘simply because the rule could be interpreted that way.’” 482 F.3d at 467 n.1 (emphasis in Lutheran Heritage). The Court of Appeals for the Fifth Circuit underlined the same point: “It must be reasonable for employees to interpret the [rule] to prohibit Section 7 activities, however; it is not enough that it merely could possibly be read that way.” NLRB v. Arkema, Inc., 710 F.3d at 318 (citing Lutheran Heritage, 343 NLRB at 647). And the Fifth Circuit gave this point even more emphasis in T-Mobile USA, Inc. v. NLRB: “The appro- priate, objective inquiry is not whether the rules 61 In Northeastern Land Services, the court disagreed with the em- ployer’s contention that Republic Aviation compelled the Board to adopt a balancing standard. I am not contending otherwise, although I note that the First Circuit appeared to take a contrary position in Texas Instruments v. NLRB, 599 F.2d at 1067. My position is that Republic Aviation compels the Board to give more weight to employers’ legiti- mate interests than does the standard the majority adopts today. The Board reasonably may do so by according legitimate employer interests substantial weight in the application of a standard that does not express- ly require balancing, as it did in Lutheran Heritage and Lafayette Park Hotel. I believe, however, that an express balancing standard is the better alternative, and from its comment regarding its decision to up- hold the Lutheran Heritage standard—“[s]ome may think this result unattractive, but the Board’s rule is . . . subject to deference”—the First Circuit apparently thought so, too. ‘could conceivably be read to cover Section 7 activity, even though that reading is unreasonable,’ but rather whether ‘a reasonable employee reading the[] rules would . . . construe them to prohibit conduct pro- tected by the Act.’” 865 F.3d at 271 (quoting Lutheran Heritage, 343 NLRB at 647) (emphasis in T-Mobile). My colleagues, of course, take the opposite position, holding that a work rule is presumptively unlawful if it can be read to restrict or prohibit Section 7 activity. It is particularly puzzling that they would cite the Fifth Cir- cuit’s decision in T-Mobile as favorable to their decision, considering that T-Mobile was the source the Board drew from in LA Specialty Produce for its definition of the reasonable employee, a definition my colleagues express- ly reject. See T-Mobile USA, Inc. v. NLRB, 865 F.3d at 271: “[T]he ‘reasonable employee’ is a T-Mobile em- ployee aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job. The reasonable employee does not view every employer policy through the prism of the NLRA. Indeed, ‘[the Board] must not presume improper interference with employee rights’” (quoting Lutheran Heritage, 343 NLRB at 646). Finally, and decisively, to the extent that the circuit court cases the majority cites can be read as upholding the Lutheran Heritage standard, that would help my col- leagues’ cause only if they were adopting that standard. As I have shown, they are not. Next, the standard the majority adopts today reflects an outlier position in the history of Board precedent. While the Board did give one-sided emphasis to Section 7 rights in some early cases and from 2011 to 2017, this was the exception. As a rule, the Board has accorded substantial weight to legitimate employer interests in deciding work-rule issues, whether by expressly balanc- ing employee rights against those interests as in Waco, Boeing, or LA Specialty Produce, by factoring the legiti- mate interests advanced by a challenged rule into the application of the ”reasonable tendency to chill” or “would reasonably construe” standards in Lafayette Park Hotel and Lutheran Heritage, respectively, or by embed- ding the employer’s legitimate interests in its longstand- ing standards for no-solicitation, no-distribution, and off- duty-access rules. Indeed, the standard my colleagues have adopted di- rectly conflicts with longstanding Board precedent. Un- der their standard, a rule is presumptively unlawful if a reasonable employee (as they define that being) could interpret it to restrict or prohibit Section 7 activity. In other words, a challenged rule will be found presump- tively unlawful under their standard without any consid- eration of the legitimate employer interests it advances. Those interests are considered, if at all, only after a rule has been deemed presumptively unlawful (and only if the employer proves they are substantial as well as legitimate and also proves, I know not how, that they cannot be STERICYCLE, INC. 29 advanced by a more narrowly tailored rule). This stand- ard, however, cannot be reconciled with Board precedent governing no-solicitation and no-distribution rules. Un- der Board law, no-solicitation and no-distribution rules are presumptively unlawful only if they are broader than necessary to accommodate the employer’s legitimate and substantial interests. More specifically: a no-solicitation rule is presumptively unlawful only if it is broader than necessary to accommodate the employer’s legitimate and substantial interest in preserving working time for work, and a no-distribution rule is presumptively unlawful only if it is broader than necessary to accommodate the em- ployer’s legitimate and substantial interests in preserving working time for work and keeping litter out of work areas. However, it is unquestionable that a lawful no- solicitation rule that prohibits solicitation during working time restricts union solicitation, and a lawful no- distribution rule that prohibits distribution during work- ing time and in work areas at any time restricts distribu- tion of union literature. Both rules reasonably could be interpreted to restrict Section 7 activity, because they do. Accordingly, under my colleagues’ standard, both would be presumptively unlawful, contrary to longstanding precedent. The majority’s understanding of a reasonable employ- ee also runs counter to longstanding Board precedent. Although the Board did not expressly define the term reasonable employee until its 2019 decision in LA Spe- cialty Produce, the definition it borrowed from the Fifth Circuit’s T-Mobile decision simply made explicit what the majority in Lafayette Park Hotel and Lutheran Herit- age took for granted: that where a challenged rule ad- vances legitimate employer interests and does not ex- pressly refer to Section 7 activity, reasonable employees will understand it in that light, not as applying to Section 7 activity. As Chairman Gould observed, “it is not enough to find that certain language in a rule is broad enough to arguably apply to Section 7 activity. The ap- propriate inquiry must center on whether a reasonable employee could believe that the rule prohibits protected activity.” Lafayette Park Hotel, 326 NLRB at 830 (Chairman Gould, further concurring). For my col- leagues, however, it is precisely enough to deem a rule presumptively unlawful “that certain language in a rule is broad enough to arguably apply to Section 7 activity,” since the “reasonable employee” they posit could inter- pret such a rule to restrict the exercise of Section 7 rights. To justify their definition of the “reasonable employ- ee,” the majority relies on language from the Supreme Court’s decision in Gissel Packing, where the Court re- ferred to “the economic dependence of the employees on their employers, and the necessary tendency of the for- mer, because of that relationship, to pick up intended implications of the latter that might be more readily dis- missed by a more disinterested ear.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). My colleagues make this passage “central to [their] analysis.” I find it inapposite, for two reasons. First, the Court referred to the tendency of economical- ly dependent employees to pick up intended implications of statements made by their employer. Under the stand- ard my colleagues have adopted, however, employers will routinely be found to violate the Act by maintaining work rules they never intended to implicate Section 7 activity in any way. Second, when it wrote these words, the Court was re- ferring to a category of statements by employers vastly different from work rules, particularly work rules that do not expressly refer to Section 7 activity—namely, predic- tions of dire consequences if employees unionize. Gissel Packing consolidated several cases, one of which in- volved the Sinclair Company, “a producer of mill rolls, wire, and related products at two plants in Holyoke, Massachusetts.” Id. at 587. When Sinclair’s president first learned, in 1965, that the Teamsters had launched an organizing effort, he made the following statements to all Sinclair employees. • A strike in 1952 “almost put our company out of business,” and employees were forgetting the “les- sons of the past.” • The company was still on “thin ice” financially, the union’s “only weapon is to strike,” and a strike “could lead to the closing of the plant.” • Because of their age and limited skills, Sinclair’s employees might not be able to find re- employment if they lost their jobs as a result of a strike. • If the employees did not believe the company could close, they should “look around Holyoke and see a lot of them out of business.” Similar communications were made to employees in the weeks immediately preceding the election, including in a pamphlet that displayed “a large cartoon showing the preparation of a grave for the Sinclair Company and oth- er headstones containing the names of other plants alleg- edly victimized by the unions.” Id. at 587–588. One of the issues in Gissel Packing was whether these statements were protected statements of opinion under Section 8(c) of the Act or coercive threats in violation of Section 8(a)(1). According to the Court, deciding that issue required balancing the relevant respective rights of employers and employees, a balancing that, given the explosiveness of the statements—in essence, if you vote for the union, you will lose your job—“must take into account the economic dependence” of employees on their employer. Id. at 617. This principle my colleagues lift out of its context in Gissel Packing and apply to the en- tirely different context at issue here. Their position is that because the “reasonable employee” should be under- stood as an economically dependent and vulnerable em- 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployee when deciding whether an employer violates the Act by making statements expressly predicting that vot- ing for a union will have dire consequences, the “reason- able employee” must be understood exactly the same way when deciding whether a challenged work rule that makes no reference whatsoever to Section 7 activity may be lawfully maintained. This faulty logic is akin to rea- soning that because it makes sense to board up houses before a hurricane, houses must be similarly protected from a breeze. Finally, I turn to the affirmative defense the majority provides employers, which enables my colleagues to claim that their standard adjusts the competing rights of employees and employers and thus accords with Repub- lic Aviation. I recognize that this defense seemingly dis- tinguishes my colleagues’ standard from that endorsed by the dissenters in Lafayette Park Hotel and Lutheran Heritage and applied in 2 Sisters Food Group and subse- quent cases. Whether there is really any substantive dif- ference remains to be seen. To review, once a work rule is deemed presumptively unlawful—under the new standard, which applies retro- actively, most probably are62—the employer escapes unfair labor practice liability by proving that the chal- lenged rule “advances a legitimate and substantial busi- ness interest and that the employer is unable to advance that interest with a more narrowly tailored rule” (empha- sis added). The majority’s decision leaves unanswered a number of questions about this defense. For example, a presumptively unlawful rule under the majority’s standard is a rule that could be interpreted, by a reasonable employee as the majority defines that be- ing,63 to restrict or prohibit Section 7 activity. In other words, a presumptively unlawful rule is an overbroad rule, and an overbroad rule can always be narrowed. Given as much, how will an employer prove that it is unable to advance its legitimate and substantial interest or interests with a more narrowly tailored rule? Would an employer have to show that it maintains the current rule because a prior narrower rule failed adequately to advance the relevant interest or interests? Would it suf- fice for an employer to introduce evidence that it consid- ered (but did not actually implement) a narrower rule and rejected it as unlikely to advance the relevant interest or interests? What if the Board finds a rule unlawful, the 62 See Boeing, 365 NLRB No. 154, slip op. at 9 (“[I]t is likely that one can ‘reasonably construe’ even the most carefully crafted rules in a manner that prohibits some hypothetical type of Section 7 activity.”); Lafayette Park Hotel, 326 NLRB at 830 (Chairman Gould, further concurring) (“When the rules have an obvious intent, they cannot be found unlawful by parsing out certain words and creating theoretical definitions that differ from the obvious ones. If that were the standard, virtually all of the work rules in today’s workplace could be deemed violative of our Act . . . .”). 63 In practice, the “reasonable employee” will be an expert in tradi- tional labor law whose full-time job it is to interpret and apply that law, i.e., Board members and the attorneys on their staffs. employer narrows it, and the narrowed rule fails ade- quately to advance the relevant interest or interests. Now that the original rule has been shown to be the narrowest possible rule, may the employer reinstate it, even though doing so would seemingly defy the Board’s prior deci- sion? Time will tell, but I suspect that the affirmative de- fense my colleagues have devised is merely a Republic Aviation fig leaf, unlikely ever to be successfully estab- lished but enabling them to claim that they have “work[ed] out an adjustment” of competing employee and employer rights.64 Employers would be well advised to assume as much and try to avoid a finding of presump- tive unlawfulness in the first place by retaining compe- tent labor counsel to craft, for inclusion in their employee handbooks, language that would make it impossible— even for my colleagues’ version of the reasonable em- ployee—to interpret any rules contained therein to re- strict Section 7 activity. G. The majority errs in applying its new standard retroactively. For all the reasons set forth above, Boeing and LA Spe- cialty Produce should not be overruled. For those that follow, if those decisions are to be overruled, the majori- ty should overrule them prospectively only. The Board must not apply a new rule of decision retro- actively—meaning in all pending cases in whatever stage—if doing so would work a manifest injustice. SNE Enterprises, 344 NLRB 673, 673 (2005). To determine whether retroactive application would cause manifest injustice, the Board considers “the reliance of the parties on preexisting law, the effect of retroactivity on accom- plishment of the purposes of the Act, and any particular injustice arising from retroactive application.” Id. Each of these considerations militates against retroactive ap- plication. Regarding reliance on preexisting law, Boeing has been the governing precedent for deciding work-rule allegations for more than 5-1/2 years. There is no reason to believe that employers have not framed their work rules in reliance on its balancing standard, particularly for rules covered by category determinations in Boeing itself and in cases applying it. The majority neither has nor cites evidence to support their empirical claim that reliance on Boeing has been “minimal.” Next, retroactive application does not accomplish the purposes of the Act. As relevant here, those purposes have been authoritatively defined by the Supreme Court as requiring the Board to work out an adjustment be- tween employees’ rights and employers’ legitimate inter- ests. Multiple courts of appeals have held that the re- quired adjustment entails a balancing of employee rights and employer interests. At minimum, the Board must 64 Republic Aviation v. NLRB, 324 U.S. at 797–798. STERICYCLE, INC. 31 give substantial weight to the latter. The standard my colleagues have adopted does neither. Finally, by applying their decision retroactively, the majority pulls the rug out from under the feet of respond- ent employers in pending cases. My colleagues say this inflicts no particular injustice because the remedy in such cases will be an order to rescind the previously lawful but now-offending rule, “leaving the employer free to replace the rule with a more narrowly tailored substi- tute.” That depends on the rule. As I explain below, there is now no such thing as a lawful investigative con- fidentiality rule, however “narrowly tailored.” More importantly, the majority defends their position by invok- ing the remedy for the unfair labor practice findings that retroactivity will entail, skipping over those findings themselves. By applying their decision retroactively, my colleagues predictably make employers in pending cases who were law-abiding yesterday into lawbreakers today. Moreover, depending on the circumstances, retroactive application of today’s decision in a pending case could make the difference between issuance of a narrow “in any like or related manner” and a broad “in any other manner” cease-and-desist order, and between standard and extraordinary remedies. See Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023). H. The Board should retain Apogee Retail. “Having rescinded the standard adopted in Boeing and revised in LA Specialty Produce,” writes the majority, “we necessarily reject those decisions and their progeny” (emphasis added). With those three words, my col- leagues overrule in relevant part every case in which the Board applied Boeing. Although I dissent from each of these overrulings, one now-overruled case particularly warrants further discussion: Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019). Be- cause the interests at stake in that case are so important, my colleagues’ decision to overrule Apogee without even attempting to address the specific type of rules at issue in that case is particularly unfortunate. In Apogee Retail, the Board held that rules requiring employees to maintain the confidentiality of workplace investigations for the duration of the investigation are categorically lawful to maintain.65 Applying Boeing, the Board in Apogee implemented the Supreme Court’s in- struction to “work[] out an adjustment” between employ- ees’ Section 7 rights and employers’ legitimate interests. It acknowledged that employees may be engaging in pro- tected concerted activity when they discuss incidents of workplace misconduct.66 But it also recognized that in- 65 368 NLRB No. 144, slip op. at 1, 8. 66 It is also true that many such discussions are not protected by the Act. “‘Activity which consists of mere talk must, in order to be pro- tected, be talk looking toward group action. . . . [I]f it looks forward to no action at all, it is more than likely to be mere griping.’” Daly Park Nursing Home, 287 NLRB 710, 710-711 (1987) (quoting Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)). But vestigative confidentiality rules serve critically important interests, for employers and employees. Confidentiality ensures that potential witnesses will not coordinate their accounts of relevant events or confuse their own recol- lections with those of others. It also allows employers to “quiet[] fears that truthful disclosures may lead to retalia- tion”67 by assuring employees that their candid state- ments will not be revealed—a vitally important assur- ance, since disclosures made in the course of an investi- gation may reveal grave wrongdoing, such as discrimina- tion, harassment, bullying, or criminal misconduct. Such investigations also may implicate employees or supervi- sors with whom the interviewed employee has regular contact. It is essential that an employer be able to assure employees that their reports will be kept strictly confi- dential. Doing so also serves the employer’s interest in obtaining evidence promptly, while employees’ memory of relevant events is fresh.68 Recognizing, moreover, that the interests served by in- vestigative confidentiality rules have their greatest sali- ency while the investigation is ongoing, the Board in Apogee distinguished between rules that limit confidenti- ality to the duration of the investigation and those that do not, making the former categorically lawful to maintain and examining the latter on a case-by-case basis. In this way, Apogee gave employers “certainty beforehand” that an investigative confidentiality rule limited to open in- vestigations will be deemed lawful, removing “fear of later evaluations labeling its conduct an unfair labor practice.”69 The Board in Apogee overruled Banner Estrella Medi- cal Center,70 a pre-Boeing decision that effectively pro- hibited employers from maintaining investigative confi- dentiality rules.71 Banner Estrella made a pretense of accommodating legitimate employer interests, while in fact giving determinative weight to employee rights (like other pre-Boeing decisions issued by the Board in and after 2011), contrary to the Supreme Court’s mandate to balance rights and interests. Banner Estrella did allow for the possibility that particular investigations might remain confidential, but it effectively prohibited employ- ers from requiring confidentiality from the outset, by workplace rule or otherwise, since an employer could not know whether it would be able to make the showing because some such conversations may “look[] toward group action,” a rule or policy that requires all investigations of misconduct to remain confidential restricts, to some extent, Sec. 7 activity. 67 Apogee Retail, 368 NLRB No. 144, slip op. at 4. 68 See id., slip op. at 4-5. 69 First National Maintenance Corp. v. NLRB, 452 U.S. at 678–679. 70 362 NLRB 1108 (2015), enf. denied on other grounds 851 F.3d 35 (D.C. Cir. 2017). 71 I suppose that Banner Estrella also provided employers “certainty beforehand.” Under Banner Estrella, employers could be certain that investigative confidentiality rules were unlawful, period. But for the reasons stated above, that was the wrong kind of certainty. 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Banner Estrella demanded until its investigation was underway. Under Banner Estrella, investigative confidentiality was required to be dealt with on a case-by-case basis, and an employer violated Section 8(a)(1) by restricting em- ployee discussions of any workplace investigation unless it presented “objectively reasonable grounds for believ- ing that the integrity of the investigation w[ould] be compromised without confidentiality.”72 Specifically, under Banner Estrella, the employer was required to prove, “with respect to each specific investigation in which confidentiality was required, that ‘witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up,”73 or other “comparably serious threats” to the integrity of the inves- tigation.74 As the Board explained in Apogee, the Banner Estrella decision disregarded the reality that a preliminary investigation is necessary in order to determine whether “witnesses need protection, evidence is in danger of being de- stroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up.” Since the em- ployer would not, at the outset, have the information it needs to make that determination, under Banner Estrel- la it is unable to provide the very assurances of confi- dentiality necessary to obtain the information it needs to make the determination Banner Estrella demands.75 Thus, under the pre-Boeing approach in Banner Estrella, employers could not maintain investigative confidentiality rules at all. The Banner Estrella Board ignored the legiti- mate—indeed, critical—employer and employee interests served by policies that require investigative confidentiality from the outset of an investigation, focusing instead on the potential infringement on Section 7 rights. Not only did this invalidate workplace policies maintained by countless em- ployers, it was also contrary to EEO and OSHA workplace- investigation guidance.76 Banner Estrella forced employers into a bind. They could choose to defy the law by requiring confidentiality from the outset, at the risk of incurring unfair labor practice liability. Or they could comply with the law but, in doing so, sacrifice the benefits of confidentiality, not just for employers, but for employees as well. Apogee struck an appropriate balance between em- ployee rights and employer (and employee) interests. My colleagues do a disservice to employers and employ- ees by overruling it. 72 362 NLRB at 1110. 73 Apogee Retail, 368 NLRB No. 144, slip op. at 4 (quoting Banner Estrella, 362 NLRB at 1109) (alterations in Apogee). 74 Banner Estrella, 362 NLRB at 1111. 75 Apogee Retail, 368 NLRB No. 144, slip op. at 5 (quoting Banner Estrella, 362 NLRB at 1109). 76 Id. Conclusion The majority says that employers are free to maintain work rules that protect their legitimate interests, so long as they narrowly tailor their rules so that no word or phrase could possibly be interpreted, by a reasonable employee as my colleagues define that being—i.e., an unreasonably hypervigilant employee—to restrict Sec- tion 7 activity. However, as the Board observed in Boe- ing, and as Chairman Gould explained nearly 25 years ago in Lafayette Park Hotel, it is virtually impossible to craft work rules that are general enough to serve their intended lawful purpose without being susceptible to an interpretation that infringes on Section 7 rights.77 More- over, the majority applies their decision retroactively. Employers therefore should assume that simply by main- taining work rules, they are violating the National Labor Relations Act. We have returned to a bygone era, from 2011 to 2017, when the Board majority rarely saw a challenged rule it did not find unlawful. The majority criticizes Boeing as giving “too much weight to employer interests” and “too little weight to the burden a work rule could impose on employees’ Section 7 rights.” But they fail to explain why their standard, which claims to balance these interests but inherently privileges employee rights while placing scant, if any, weight on employer interests, is any better. The standard that they embrace today is not only inconsistent with the balancing required under Republic Aviation but it makes it nearly impossible for employers to defend their rules in furtherance of legitimate employer interests, such as en- suring that a workplace is safe or that employees can work without being subject to abuse, for example. Not only is this not what the Act intended but it assumes that adults are unable to recognize for themselves whether or not such rules, read in context, are intended to apply to, or will be enforced against, employees’ exercise of their Section 7 rights. Because my colleagues’ decision here fails to pay more than lip service to the required balanc- ing of employees’ rights and employers’ legitimate busi- ness interests, I respectfully dissent. Dated, Washington, D.C. August 2, 2023 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD Lea Alvo-Sadiky, Esq., for the General Counsel. Charles P. Roberts III, Esq. (Constangy, Brooks, Smith & Prophete LLP), of Winston-Salem, North Carolina, for the Respondent. 77 See supra nn.18 & 62. STERICYCLE, INC. 33 Claiborne S. Newlin, Esq. (Meranze, Katz, Gaudioso & Newlin, PC), of Philadelphia, Pennsylvania, for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. On Novem- ber 10, 2016, I issued a decision concluding, inter alia, that Stericycle, Inc. (the Company) implemented and maintained rules in its 2015 employee handbook relating to personal con- duct, conflicts of interest, and confidentiality of harassment complaints in violation of Section 8(a)(1) of the National Labor Relations Act (the Act).1 On May 8, 2020, the National Labor Relations Board (the Board) remanded the allegations to me for further consideration and issuance of a supplemental decision in accordance with the revised framework for analyzing such rules set forth in Boeing Co., 365 NLRB No. 154 (2017).2 FINDINGS OF FACT3 Stericycle, Inc. (the Company) is the largest medical waste disposal company in the United States. The Company’s Mor- gantown, Pennsylvania facility collects, processes, and disposes of regulated medical waste from hospitals, nursing homes, and medical, dental and veterinary offices. The policies at issue are set forth in an employee handbook that was distributed to the Company’s Morgantown employees in February 2016. The rules at issue state, in pertinent part: Personal Conduct Policy In order to protect everyone’s rights and safety, it is the Com- pany’s policy to implement certain rules and regulations re- garding your behavior as a team member. Conduct that mali- ciously harms or intends to harm the business reputation of Stericycle will not be tolerated. You are expected to conduct yourself and behave in a manner conducive to efficient opera- tions. Failure to conduct yourself in an appropriate manner can lead to corrective action up to and including termination. The following are some examples of infractions, which could be grounds for corrective action up to and including termina- tion, however this list is not all-inclusive. -- Possession, consumption, distribution or sale of alcohol, drugs or illegal substances while on premises, or reporting to work under the influence of theabove mentioned items. -- Carrying or possessing firearms or weapons of any kind on the Company’s property or while engaged in Company as- signments -- Theft -- Pilfering of waste -- Use of profanity or inappropriate language while on Steri- cycle premises whether on duty or not. -- Gambling on Stericycle premises -- Acts of violence -- Engaging in behavior which is harmful to Stericycle’s repu- tation 1 29 U.S.C. §§ 151–169. 2 parties waived the right to reopen the record in order to introduce additional evidence. 3 General Counsel has since withdrawn and dismissed the complaint allegations regarding the use of personal electronic devices, electronic communications, cameras and videos. With that exception, the findings of fact in my initial decision (JDO 110-16) are incorporated by refer- ence herein. -- Falsifying any Stericycle record or report, including but not limited to an application for employment, a time record, a customer record, manifest, invoices, receiving records, etc. -- Willfully defacing, damaging, or unauthorized use of Com- pany property or another team member’s property -- Sleeping on the job -- Continued or excessive absenteeism or tardiness -- Violation of safety and/or operating rules -- Smoking or “Vaping” in “No Smoking” areas -- Refusing to follow the directions of a supervisor or other- wise being insubordinate -- Violation of the Sexual Harassment policy -- Failure to punch/swipe in and out when appropriate or punching in/out for other team members Conflicts of Interest Stericycle will not retain a team member who directly or indi- rectly engages in the following: -- An activity that constitutes a conflict of interest or adversely reflects upon the integrity of the Company or its management. -- An activity in which a team member obtains financial gain due to his/her association with the Company. -- An activity, which by its nature, detracts from the ability of the team member to fulfill his/her obligation to the Company. Confidentiality of Harassment Complaints The employee handbook contained a detailed policy prohibit- ing harassment of all types, including, but not limited to, sex- ual harassment. In a separate section, entitled “Retaliation,” the handbook provided: Stericycle strictly prohibits unlawful retaliation against any team member or applicant for employment who reports dis- crimination or harassment, or who participates in good faith in any investigation of unlawful discrimination or harassment. What action should you take if you feel you have been a vic- tim of harassment or retaliation? If you believe you have been the victim of harassment or re- taliation of any kind, immediately do the following: 1. If you feel comfortable doing so, we encourage you to tell the person in no uncertain terms to stop; and 2. Report the incident and the name of the individual(s) in- volved to your Human Resources Representative. If you can- not report the issue to your Human Resources Representative for any reason, contact the Team Member Help Line at [Phone Number]. The Help Line accepts anonymous com- plaints of any kind. All complaints will be promptly investigated. All parties in- volved in the investigation will keep complaints and the terms of their resolution confidential to the fullest extent practicable. Analysis In Boeing Co., 365 NLRB No. 154 (2017), the Board estab- lished a new standard for determining whether a facially neutral employer policy, reasonably interpreted, would unlawfully interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. This decision overruled Lutheran Herit- age Village-Livonia, 343 NLRB 646 (2004), which held that a facially neutral work rule would be found unlawful if employ- ees would reasonably construe it to prohibit Section 7 activity. 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Id. at 647. Specifically, the Board held that, when analyzing a facially neutral policy, rule or handbook provision that would potentially interfere with the exercise of rights under the Act, it will evaluate two things: (i) the nature and extent of the poten- tial impact on rights under the Act, and (ii) legitimate justifica- tions associated with the rule. Boeing, 365 NLRB No. 154, slip op. at 3. In conducting this evaluation, the Board seeks to bal- ance the employer’s asserted business justifications for the policy and the extent to which the policy interferes with em- ployee rights under the Act. The Board also announced that it would evaluate the work rules based on one of three categories: Category 1—lawful rules, as reasonably interpreted, that do not prohibit or interfere with the exercise of protected rights or the potential adverse impact on protected rights is outweighed by business justifica- tions; Category 2—rules warranting individualized scrutiny as to whether they would prohibit or interfere with protected rights, and if so, whether any adverse impact on protected con- duct is outweighed by legitimate justifications; and Category— rules that unlawfully prohibit or limit protected conduct, which impact is not outweighed by business justifications. Id. at 3–4. Personal Conduct and Conflict of Interest Policies The complaint alleges that the Company’s Personal Conduct and Conflict of Interest Policies, both of which prohibit conduct that is harmful to the Company’s reputation or integrity, violate Section 8(a)(1) of the Act by unlawfully restricting employee conduct with no substantial business justifications. The Com- pany contends that the policies are lawful and any restrictions on employee conduct are outweighed by substantial business justifications. An employer violates Section 8(a)(1) of the Act when it in- terferes with or restrains employees’ Section 7 rights. The Board has long held that “employees have a right to discuss among themselves, and with the public, information about their terms and conditions of employment for the purpose of mutual aid and protection.” Motor City Pawn Brokers, 369 NLRB No. 132, slip op. at 6 (2020) (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565–566 (1978)). On the other hand, the Board has deci- sively categorized policies prohibiting employee communica- tion with customers and third parties in a way that disparages the company as lawful. Id. at 9. In Motor City Pawn Brokers, the Board determined that this type of policy falls into Boeing category 1(b), because the po- tential adverse impact on Section 7 rights is outweighed by significant business justifications and legitimate interest in maintaining a positive reputation with customers and the gen- eral public. Id. The Respondent relies on Motor City Pawn Brokers as dispositive because the policies analyzed there were indistinguishable with those at issue here. Motor City Pawn Brokers is not dispositive, however, because the sanctioned policies in that case encompassed only employee communica- tions with customers and third parties, and the business justifi- cation cited emphasized the impact on third parties. The policies at issue here have a much broader reach. They prohibit “conduct that maliciously harms or intends to harm the business reputation of Stericycle,” “behavior which is harmful to Stericycle’s reputation,” and “an activity that constitutes a conflict of interest or adversely reflects upon the integrity of the Company or its management.” Such language could reasonably be read to include communications with not only third parties and customers, but also with and among employees. The Board has distinguished between policies prohibiting disparaging statements made to third parties, which are lawful, and those prohibiting disparaging statements among employees, which unlawfully infringe on Section 7 rights. See Union Tank Car Co., 369 NLRB No. 120, slip op. at 2–3 (July 17, 2020) (finding prohibition on disparaging communications among employees to be unlawful). The policies at issue here are broad and do not specify whether they apply to statements between employees or customers and third parties. Because the policies are so broad, they could be reasonably interpreted to prohibit communications among employees regarding the terms and conditions of their employment, thus interfering with core Sec- tion 7 activity. These policies also embrace conduct, rather than just communications, that is harmful to the Company’s reputation. Such a restriction could reasonably be interpreted to include other protected activities such as participating in a strike or some other form of protest of working conditions. In contrast with the business considerations that attach to policies prohibiting disparaging statements to customers and third parties, none have been shown to exist with respect to policies infringing on protected communication among em- ployees. Moreover, the Company’s policies stress that the fail- ure to comply could result in termination. Such adverse conse- quences impose a chilling effect on employees’ Section 7 rights, with no substantial business justifications. As the Board held in Union Tank Car Co., there is no business justification that would outweigh an infringement of this nature on such core Section 7 rights. Id. The Respondent contends that its Conflict of Interest Policy is reasonably understood to encompass business and financial activities that typically constitute a conflict of interest, rather than all outside activity. Read isolated, this is a reasonable interpretation; a “conflict of interest” in a business environment is reasonably understood to involve some form of additional employment or involvement outside of work that would create a concern of competing commitments. The Respondent relies on G & E Real Estate Management Services, Inc. d/b/a Newmark Grubb Knight Frank, 369 NLRB No. 121 (2020) as dispositive because it concerned a conflict of interest policy which the Board found to be lawful. Read as a whole, however, the provision at issue here is substantially different. The Newmark policy specifically applied to outside employment and other business activities. It also listed several examples of proscribed activities (outside employment, con- sulting, serving on boards, and making non-passive invest- ments). Id. The Conflict of Interest policy here is much broader and does not make any of these specifications, so Newmark cannot be dispositive. As reasonably interpreted, the Respondent’s Personal Con- duct and Conflict of Interest Policies violate Section 8(a)(1) of the Act. A. of Harassment Complaints The Board has consistently held that confidentiality policies limited to the duration of an open investigation also fall into Boeing Category 1(b) because they infringe on employees’ rights, but that infringement is outweighed by the substantial business justifications. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144, slip op. at 11 (2019) (holding that the employer has a substantial interest in maintaining a fair investigation, encouraging employees to come forward with allegations, and protect employees from retaliation or repercus- STERICYCLE, INC. 35 sions); Caesar’s Palace, 336 NLRB 271, 272 (2001) (Board upheld a confidentiality policy applied to ongoing investigation of alleged drug activity in workplace). In contrast, when inves- tigative confidentiality rules are not limited to the duration of an investigation, they fall into Boeing Category 2, requiring a weighing of the business justifications with the potential impact on employees’ Section 7 rights. Apogee Retail LLC, supra at 13. The rule at issue, which requires that “[a]ll parties involved in the investigation will keep complaints and the terms of their resolution confidential to the fullest extent practicable,” can be reasonably interpreted to extend past the period of open inves- tigation and has no clear time limit. The Board has long recog- nized that the right of employees to discuss, at the very least among themselves, the details of a workplace investigation is a protected Section 7 right. See Phoenix Transit System, 337 NLRB 510, 511 (2002) (finding rule which prohibited discus- sion of resolution of employee complaint to be unlawful). The business justifications for confidentiality during an investiga- tion in Apogee – protecting evidence and maintaining the integ- rity of the investigation – become irrelevant once an investiga- tion concludes. At that point, the only remaining rationale pertains to the protection of witnesses and victims from retalia- tion. The policy requires confidentiality “to the fullest extent prac- ticable.” As reasonably interpreted, the policy is simply too vague. Employees may reasonably construe the policy to pro- hibit them from discussing the events that prompted a com- plaint and the actions taken by the company in response. Such an interpretation could severely limit their options for recourse and prevent them from speaking out when the company does not satisfactorily respond to a complaint. It also can be reason- ably construed to preclude communications with union repre- sentatives, for which there is no legitimate business justifica- tion. The policy does not impose a punishment if confidentiality is not maintained. That omission, however, does not render the chilling effect on employees’ protected communications negli- gible. Since the rule appears in an employee handbook along with other rules that are punishable, it is reasonable for an em- ployee to believe that there may be adverse consequences if they fail to maintain confidentiality. The Equal Employment Opportunity Commission’s (EEOC) guidance on “Vicarious Liability for Unlawful Harassment by Supervisors” does not produce a different result. That advisory stresses the importance of an employer’s duty to maintain the confidentiality of victims and witnesses of harassment to ensure that employees are comfortable speaking up. It does not even remotely suggest, however, that employees who file such com- plaints should also be bound to bury their concerns in perpetui- ty. The flip side, of course, is that an employee who chooses to confer with other employees about their complaints after an investigation has concluded assumes the risk of retaliation. The duty, according to the EEOC, extends to the employer, not the employee. As reasonably interpreted, the Company’s policy classifying harassment complaints as confidential is excessively and unjus- tifiably broad with the potential to infringe upon protected communications between employees after an investigation concludes. Accordingly, that policy also violates Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Stericycle, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Teamsters Local 628 (the Union) is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times since September 1, 2006, the Union has been the exclusive collective-bargaining representative of the follow- ing unit of employees at its Southampton facility (the South- ampton unit), which unit is appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time drivers, driver techs, in house techs, helpers, dockworkers and long haul drivers of the Company at its Southampton, Pennsylvania location; but ex- cluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. 4. At all times since September 1, 2011, the Union has been the exclusive collective-bargaining representative of the follow- ing unit of employees at its Morgantown facility (the Morgan- town unit), which unit is appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time regulated medical waste (RMW) plant workers, sharps plan workers, RMW Shift Su- pervisors, Sharps Shift Supervisors/quality control representa- tives, drivers, dispatchers, yard jockey, maintenance mechan- ics, Maintenance Supervisor and painters employed by Re- spondent at its Morgantown, Pennsylvania facility; but ex- cluding all office employees, confidential employees, guards and supervisors as defined in the Act. 5. The Respondent failed to provide the Union with an op- portunity to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act by making unilateral changes to Morgantown facility employees’ terms and conditions of employment by implementing an employee handbook in February 2015. 6. The Respondent failed to bargain in good faith in viola- tion of Section 8(a)(5) and (1) of the Act by refusing the Un- ion’s requests on September 11 and 26, 2014, for a copy of information concerning the Respondent’s recoupment of em- ployee healthcare deductions from Southampton unit employ- ees. 7. The Respondent failed to bargain in good faith in viola- tion of Section 8(a)(5) and (1) of the Act by refusing the Un- ion’s request on September 5 and 18, 2014, for a copy of the Respondent’s internal communications, meeting notes and bar- gaining documents relating to the Union’s grievance over the 401(k) provision in the Southampton unit employees’ collec- tive-bargaining agreement. 8. The Respondent failed to bargain in good faith in viola- tion of Section 8(a)(5) and (1) of the Act by refusing the Un- ion’s request on November 13 and 18, and December 1, 2014 for a copy of the Respondent’s EBOLA training provided to Morgantown unit employees. 9. The Respondent failed to bargain in good faith in viola- tion of Section 8(a)(5) and (1) of the Act by refusing or failing to provide the Union with a copy of the Morgantown employee handbook then in effect and requested by the Union on Decem- ber 1, 2014. 10. The Respondent failed to bargain in good faith in viola- tion of Section 8(a)(5) and (1) of the Act by unreasonably de- 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD laying in providing the Union with information it requested on November 24, 2014 about the Vehicle Backing Program. 11. The Respondent failed to bargain in good faith in viola- tion of Section 8(a)(5) and (1) of the Act by refusing to provide the Union with a copy of the Code of Conduct and Harassment Training video shown to Morgantown unit employee. 12. The Respondent violated Section 8(a)(1) of the Act by maintaining a personal conduct work rule at page 30 of the Team Member Handbook which could be understood to prohib- it employees from engaging in activities protected under Sec- tion 7 of the Act and states, in pertinent part, that “[c]onduct that maliciously harms or intends to harm the business reputa- tion of Stericycle will not be tolerated. You are expected to conduct yourself and behave in a manner conducive to efficient operations. Failure to conduct yourself in an appropriate man- ner can lead to corrective action up to and including termina- tion . . . Engaging in behavior that is harmful to Stericycle’s reputation.” 13. The Respondent violated Section 8(a)(1) of the Act by maintaining a conflict of interest work rule at page 33 of the Team Member Handbook which could be understood to prohib- it employees from engaging in activities protected under Sec- tion 7 of the Act and states, in pertinent part, that “Stericycle will not retain a team member who directly or indirectly engag- es in the following: . . . An activity that constitutes a conflict of interest or adversely reflects upon the integrity of the Company or its management.” 14. The Respondent violated Section 8(a)(1) of the Act by maintaining a retaliation work rule at page 10 of the Team Member Handbook which could be understood to prohibit em- ployees from engaging in activities protected under Section 7 of the Act and states, in pertinent part, that “[a]ll parties involved in the investigation will keep complaints and the terms of their resolution confidential to the fullest extent practicable.” 15. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 16. The Respondent has not violated the Act except as set forth above. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Moreover, as one or more of the challenged policies have been determined to be overly broad and violate Section 8(a)(1), a nationwide posting by the Company is appro- priate since the record establishes that the unlawful rules or poli- cies are maintained or in effect at all of the Company’s facili- ties within the United States. See Mastec Advance Technolo- gies, 357 NLRB 103 (2011), enfd. sub nom. DIRECTV v. NLRB, 847 F.3d 25 (D.C. Cir. 2016), cert. denied, 2017 U.S. LEXIS 5318; Guardsmark, LLC, 344 NLRB 809, 812 (2005). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended 4 ORDER The Respondent, Stericycle, Inc., Morgantown and South- 4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. ampton, Pennsylvania, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain in good faith with the Teamsters Lo- cal 628 (the Union) as the exclusive representative of employ- ees in the following appropriate unit at the Respondent’s Southampton facility: All full-time and regular part-time drivers, driver techs, in house techs, helpers, dockworkers and long-haul drivers of the Company at its Southampton, Pennsylvania location; but excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. (b) Refusing to bargain in good faith with the Teamsters Lo- cal 628 (the Union) as the exclusive representative of employ- ees in the following appropriate unit at the Respondent’s Mor- gantown facility: All full-time and regular part-time regulated medical waste (RMW) plant workers, sharps plan workers, RMW Shift Su- pervisors, Sharps Shift Supervisors/quality control representa- tives, drivers, dispatchers, yard jockey, maintenance mechan- ics, Maintenance Supervisor and painters employed by Re- spondent at its Morgantown, Pennsylvania facility; but ex- cluding all office employees, confidential employees, guards and supervisors as defined in the Act. (c) Refusing to bargain collectively with the Union by dis- tributing a Team Member Handbook to bargaining unit em- ployees that unilaterally changes their terms and conditions of employment. (d) Unreasonably delaying in providing the Union with in- formation that is relevant and necessary to its role as unit em- ployees’ bargaining representative. (e) Refusing to provide the Union with requested infor- mation that is relevant and necessary to its role as unit employ- ees’ bargaining representative. (f) Maintaining a personal conduct rule in the Team Mem- ber Handbook that prohibits unit employees from engaging in conduct that maliciously harms or intends to harm the Re- spondent’s business reputation, expects employees to conduct themselves and behave in a manner conducive to efficient oper- ations, threatens employees with corrective action including termination for failing to conduct themselves in an appropriate manner or engaging in behavior that is harmful to the Respond- ent’s reputation. (g) Maintaining a work rule in the Team Member Handbook prohibiting conflicts of interest that threatens adverse action if an employee directly or indirectly engages in an activity that adversely reflects upon the integrity of the Company or its management. (h) Maintaining a retaliation work rule that requires unit employees involved in harassment investigations to keep har- assment complaints and the terms of their resolution confiden- tial to the fullest extent practicable. (i) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative actions necessary to effec- tuate the policies of the Act. (a) Rescind the entire Team Member Handbook provided to Morgantown bargaining unit employees that unilaterally changed their terms and conditions of employment. STERICYCLE, INC. 37 (b) Before implementing any changes in wages, hours, or other terms and conditions of employment of Southampton and Morgantown unit employees, notify and on request, bargain with the Union as their exclusive bargaining representative. (c) Provide the Union with the vehicle backing program in- formation it requested on November 24, 2014. (d) Provide the Union with information it requested on Sep- tember 5 and 18, 2014, regarding the Respondent’s internal communications, meeting notes and bargaining documents relating to the Union’s grievance over the 401(k) provision in the Southampton unit employees’ collective-bargaining agree- ment. (e) Provide the Union with the information it requested on November 13 and 18, and December 1, 2014, regarding the Respondent’s EBOLA training provided to Morgantown unit employees. (f) Provide the Union with the information it requested on December 1, 2014, regarding the Morgantown facility employ- ee handbook then in effect. (g) Provide the Union with the information it requested on December 30, 2014, regarding Code of Conduct and Harass- ment Training provided to employees. (h) Within 14 days after service by the Region, post at its facilities in Morgantown and Southampton, Pennsylvania, cop- ies of the attached notice marked “Appendix A and at all of its facilities within the United States and its territories, copies of Appendix B.”5 Copies of the notices, on forms provided by the 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- Regional Director for Region 4, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 5, 2014. (i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found. Dated, Washington, D.C. September 4, 2020 tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”