An analysis of the NLRB General Counsel’s Memorandum

Introduction

On June 6, 2018, the National Labor Relations Board’s (“NLRB”) General Counsel (“GC”) released a memorandum providing guidance on the NLRB’s recent decision in The Boeing Company, 365 NLRB No. 154. When responding to unfair practice charges involving employer handbook rules, the memo provides employers with an easy to follow roadmap to evaluate the legality of employer handbook language and rules.

In an effort to limit ambiguity, the NLRB overruled Lutheran Heritage’s reasonably construe[1] standard and its presumption of prohibiting any rule that could be interpreted to violate section 7, in favor of a test that prohibit rules that would violate section 7 activity.

The Boeing decision introduces a balancing test which compares the interests of the employer to the relative burden on rights guaranteed by the National Labor Relations Act (“NLRA”). In interpreting this employer-friendly decision, the GC introduced three categories to analyze employer policies:

[1] Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) (holding within the first prong of a three-prong test: violation is dependent on whether employees would reasonably  construe the language to prohibit Section 7 activity.)

Rules that are Lawful to Maintain

Takeaway: Generally, challenges by the charging party based on the above rules should be dismissed by the Regional agents of the NLRB, unless withdrawn by the charging party.

1) Civility:

• The vast majority of conduct covered by these rules (name calling, gossiping, and rudeness, was not found to implicate Section 7 at all.[1]
• “Employees are capable of exercising their Section 7 rights without resorting to disparagement of their fellow employees; thus the impact of such a rule on NLRA-rights is comparatively slight.”[2]
• While some protected concerted activity may involve criticism of fellow employees or supervisors, the requirement that such criticism remain civil does not unduly burden the core right to criticism.
• GC opined that these types of rules advance substantial employee/employer interests and the employer’s legal responsibility to maintain a workplace free of unlawful harassment, violence, unnecessary conflict or a toxic work environment.

2) No Photography and No Recording Rules:

• The GC determined that no-photography rules have little impact on NLRA protected rights because it is not central to protected concerted activity.
• Employers have a legitimate and substantial interest in limiting recording and photography on their property.
  • Examples: (security concerns, protection of property, confidential and customer information, avoiding legal liability, and maintaining the integrity of operations.)
• Therefore, no photography/no recording rules are always lawful.[3]

3) Insubordination, Non-Cooperation, or On-the-Job Conduct that Adversely Affects Operations:

• The vast majority of activities of these rules are unprotected.[4]
• An employer has a legitimate and substantial interest in preventing insubordination or non-cooperation at work.
  • An employer, during working time, has every right to expect employees to perform their work and follow directives.
• Regional agents should not presume any impact on NLRA rights (even when there is ambiguity).

4) Disruptive Behavior:

• The majority of conduct that is covered by this rule is unprotected such as roughhousing, dangerous conduct or bad behavior.
  • Even if protected, concerted activity such as walk-outs, picketing, strikes, and presentations of petitions or grievances are considered to be disorderly or disruptive. Generally, the employees know that they are discomfiting the employer and do so anyway.
• These rules enhance workplace productivity and safety and apply directly to the employer’s substantial interest in maintaining a safe and productive environment.

5) Rules Protecting Confidential Proprietary and Customer Information or Documents:

• Rules that ban the discussion of confidential, proprietary or customer information that make no mention of employee or wage information are lawful.
• Employers have a compelling interest in prohibiting the disclosure of this information to protect their business reputation and avoid legal liability.

6) Defamation or Misrepresentation:

• Rules banning defamation will not likely cause employees to refrain from protected concerted activity. (Vast majority of conduct is unprotected.)
• Employees will generally understand that these rules do not apply to subjectively honest protected concerted speech.
  • Employee rules should not be expected to be perfect, especially where requiring such perfection negatively affects employees because it prevents them from knowing their own conduct rules.
• Employers have a significant interest in protecting themselves, their reputations and their employees from defamation and slander.
• While defamation, slander or misrepresentation may technically cover some activity that is protected by the law, the majority of behavior it covers is unrelated to the NLRA.[1]

7) Rules against Using Employer Logos or Intellectual Property:

• Most activity covered by these rules are unprotected, including use of employer’s intellectual property for unprotected personal gain or using it to give the impression that one’s activities are condoned by the employer.
• Even where employees would reasonably interpret such a rule to apply to fair use of logos (on leaflets and picket signs) as protected concerted activity, it is unlikely that the rule would cause them to refrain from using them.
• If the employee did refrain from fair use of an employer’s logo, it would only have a peripheral effect on Section 7 rights.
• Employers have significant interest in protecting their intellectual property. They also have an interest in ensuring that employee social media posts and other publications do not appear to be official.

8) Rules Requiring Authorization to Speak on behalf of the Company:

• Where the rule regulates who may speak on behalf of the company, there will normally be no impact on Section 7 rights.
• Employers have a significant interest in ensuring that only authorized employees speak for the company.

9) Banning Disloyalty, Nepotism or Self-Enrichment:

• The GC endorsed the Board’s historic interpretation that rules banning disloyalty and blatant conflicts of interest do not have any meaningful impact on Section 7.
• Employers have a legitimate and substantial interest in preventing conflicts of interest such as nepotism, self-dealing, or maintaining a financial interest in a competitor.

Rules that Warrant Individual Scrutiny

Takeaway: Generally, challenges by the charging party based on the above rules should be evaluated on a case by case basis. These rules are not obviously lawful or unlawful and challenges must be evaluated in light of the balancing test.[1] If a rule should be individually scrutinized, companies should submit all rules in this section to advice.[2]

Broad Conflict of Interest Rules

• Rules that do not specifically target fraud and self-enrichment and do not restrict membership or voting for a union.

Confidentiality Rules

• Rules broadly encompassing employer business or employee information. (As opposed to confidentially rules regarding customer or proprietary information).

Disparagement or criticism

• Rules regarding disparagement or criticism of the employer (as opposed to civility rules).

Name Use

• Rules regulating the use of the employer’s name (as opposed to rules regulating the use of the employer’s logo/trademark).

Speaking to Media

• Rules generally restricting speaking to the media or third parties (rather than rules restricting speaking to the media on the employer’s behalf).

Off–duty Conduct

• Rules banning off-duty conduct that might harm the employer (as opposed to banning insubordinate or disruptive conduct at work).

False or Inaccurate Statements

• Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

[1] Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) (holding within the first prong of a three-prong test: violation is dependent on whether employees would reasonably  construe the language to prohibit Section 7 activity.)

[2] Addressing issue raised in William Beaumont Hospital, 363 NLRB No. 162, slip op. at 1 (Apr. 13, 2016).

[3] Dissent, Chairman Miscrimarra, Celloco Partnership d / b/ a Verizon Wireless, 365 NLRB No. 38, slip op. 12 (Feb. 23, 2017).

[4] Note: The Board in Boeing addressed rules prohibiting the use of camera-enabled cell phones to take photographs; it did not address the use of possession of cellphones for communication purposes.

[5] Insubordination rules that lack any reference that indicate that Section 7 activity is forbidden.

[6] See Linn v. United Plant Guard Workers of America, Local 114, 282 U.S. at 58-63.

[7] Regions will have to determine whether the rule would interfere with the rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications.

[8] Submissions should be in the form of an email, outline or brief memorandum. It should include the rule at issue and any related rules, the employer’s asserted justification for the rule, any evidence of the rule actually chilling employee protected conduct and pertinent past enforcement of the rule. It should include any factors raised by the parties or identified by the Region that weigh in favor of either the rule’s negative impact on protected concerted activity or the employers legitimate business interests furthered by the rule. Finally, the submission should include the Region’s proposed balancing of the factors and recommended conclusion.