## Facts

- Stericycle, Inc., maintained handbook rules addressing employee conduct and workplace practices, including:
  - Prohibiting conduct that “maliciously or intentionally harms the business reputation of the company.”
  - Barring conduct that “constitutes a conflict of interest with the company’s interests.”
  - Requiring employees to keep “the results of complaints and investigations confidential.”
  - Prohibiting “taking pictures and videos of any Stericycle property.”
- A charge alleged the rules were facially neutral but tended to chill employees’ exercise of NLRA § 7 rights, violating § 8(a)(1).
- An Administrative Law Judge, applying the then-governing Boeing standard, found certain rules unlawful.
- The Board invited briefing on whether to retain, modify, or overrule Boeing and used the case to revise the legal framework for evaluating facially neutral work rules.
- The Board adopted a new standard and remanded for further proceedings rather than issuing final merits rulings on each challenged rule.

## Issues

1. What standard governs whether a facially neutral workplace rule is unlawful under NLRA § 8(a)(1) because it tends to chill employees’ exercise of § 7 rights?
2. Whether the Board should retain the Boeing/LA Specialty Produce balancing and categorical approach or replace it with a different test.

## Decision

- The Board overruled Boeing Co. and its refinement in LA Specialty Produce Co.
- The Board adopted a modified Lutheran Heritage framework for facially neutral rules.
- The General Counsel bears the initial burden to show the rule has a reasonable tendency to chill § 7 activity, assessed from the viewpoint of an economically dependent employee contemplating protected concerted activity.
- If the rule could reasonably be interpreted to have a coercive meaning, the General Counsel meets the burden even if an alternative, noncoercive reading is also reasonable; the rule is then presumptively unlawful.
- The employer may rebut by proving the rule advances a legitimate and substantial business interest and that the interest cannot be achieved with a more narrowly tailored rule.
- The case was remanded for application of the new standard; the Board did not finally determine the lawfulness of each Stericycle rule in the first instance.
- The new standard applies retroactively to pending cases involving facially neutral work rules.

## Legal Principles

- The maintenance of a facially neutral work rule violates § 8(a)(1) if it has a reasonable tendency to chill employees from exercising § 7 rights, judged from the perspective of an economically dependent employee who contemplates protected concerted activity.
- Ambiguity is resolved in favor of employee rights: a rule is presumptively unlawful if employees could reasonably read it as coercive, even if a lawful reading is also reasonable.
- Employer intent is not controlling; the focus is the rule’s reasonable tendency to deter protected conduct.
- Burden shifting applies once chilling tendency is shown: the employer must establish (1) a legitimate and substantial business interest and (2) inability to serve that interest with a more narrowly tailored rule.
- Categorical “always lawful” classifications for neutral rules are rejected in favor of rule-specific analysis focused on wording and context.

## Conclusion

The Board replaced Boeing’s balancing and categorical framework with a more employee-protective, burden-shifting test that presumes a facially neutral rule unlawful when it could reasonably be read to deter Section 7 activity, subject to a narrow business-justification defense, and remanded Stericycle’s challenged policies for reconsideration under that test.


Stericycle, Inc., 372 N.L.R.B. No. 113 (2023)