NLRB Work Rule Decisions Continue to be a Mixed Bag

by Proskauer - Labor Relations
Contact

As the NLRB continues to wade through the pool of issues arising from social media policies and other workplace rules, an Administrative Law Judge’s recent decision in Cellco Partnership d/b/a Verizon Wireless (July 25, 2014) illustrates the growing number of problems employers face in developing corporate policies and the variability of NLRB decisions. In this case, Cellco Partnership and Airtouch Cellular had mixed success in defending their work rules against alleged 8(a)(1) violations. Specifically, the ALJ ruled in the following ways with respect to corporate policies that forbade employees from:

  • Engaging in solicitation during work time, distributing nonbusiness literature in work areas at any time and using company resources (such as emails, computers, telephones and fax machines) for solicitation or distribution purposes
    • The ALJ upheld this rule, finding that employees have no statutory right to use an employer’s equipment for personal matters. Citing Register-Guard (Dec. 16,  2007), ALJ Cates opined that email systems constitute employer property, and are thus subject to restrictions under employers’ “right to regulate and restrict the use of company property.” Based on the ruling in Register-Guard, ALJ Cates declined to consider the applicability of the Republic Aviation (Jan. 10, 1945) framework, which would have balanced the employee’s Section 7 rights with the employers’ disciplinary interests, concluding that it was for the Board to determine whether the precedent should be altered. It should be noted that the Board is currently considering the issue of whether employees should have a right to use an employer’s email to engage in protected activity in Purple Communications, Inc. (Cases 21-CA-095151, 21-RC-091531 and 21-RC-091584).
  • Accessing, obtaining or disclosing another employee’s personal information unless acting for approved business purposes
  • The ALJ found this rule to be unlawfully overbroad. Employees could reasonably conclude the rule to restrict their Section 7 rights in discussing terms and conditions of employment with co-workers and nonemployees, such as union representatives. The ALJ also noted that a number of previous Board decisions found that nondisclosure policies prohibiting the sharing of employees’ addresses, telephone numbers and email addresses violate Section 8(a)(1) of the Act.
  • The ALJ found this rule to be valid, finding that the use of recording devices is not a protected activity under Section 7. ALJ Cates held that there was no basis to believe that the rule was intended to restrict the exercise of Section 7 activities, nor could it be interpreted by a reasonable employee to do so. The ALJ noted that the rule does not outright ban the use of recording devices, but rather requires employee consent, which a union could easily obtain by requiring members to sign a waiver.
  • The ALJ upheld this rule, finding that a reasonable employee would likely understand it as a subset of a rule on “Safeguarding Company Information.” It is clear that this rule deals with protecting information that could lead to the buying and selling of securities, and not information pertaining to terms and conditions of employment.
  • The ALJ upheld the rule, finding that, as formerly discussed, nonpublic information was clarified by a previous rule to refer to inside information that could affect a person’s decision to buy or sell securities or intellectual property rights. Since it does not pertain to employees’ discussion wages or terms and conditions of employment, it does not unlawfully restrict Section 7 rights.
  • The ALJ ruled that because the policy restricts the use of company systems without discriminating against Section 7 rights, it is lawful under Register-Guard.  Additionally, the rule is narrowly drawn and includes clarifying examples as to what conduct would cause company embarrassment, such as pornography, gambling, obscene or offensive content, and thus would not be read by a reasonable employee to restrict Section 7 activity.
  • The ALJ found this rule unlawful, but noted the conflicting holdings on the issue. The ALJ cited Pepsi-Cola Bottling Co. (Feb. 28, 1991), which held an employer’s prohibition of wearing company uniforms while engaging in union activity was unlawful without a legitimate business purpose—especially since it was promulgated in response to union activity. On the other hand, in Flamingo Hilton-Laughlin (Nov. 30, 1999), the Board distinguished the precedent in Pepsi-Cola and dismissed allegations that a policy prohibiting employees from wearing work uniforms outside company premises was unlawful, since there was no evidence of discriminatory intent. The ALJ noted that although there was no indication of anti-union animus in this case, the rule’s overbroad nature unlawfully restricts employees’ Section 7 rights. Under this policy, employees would be unable to display a company logo as part of their communications, such as on leaflets or picket signs dealing with an employment related dispute.
  • Recording, photographing or videotaping another employee without that employee’s knowledge and approval
  • Releasing nonpublic company financial information to the public, third parties, or internet forums
  • Disclosing nonpublic information to employees and former employees without authorization
  • Using company systems (such as email and internet) to engage in activities that are unlawful, violate company policy, or cause liability or embarrassment to the company
  • Using the company brand and logo outside approved corporate identity specifications

The ALJ’s decision demonstrates the importance of considering individual work rules within the context that they are presented. As in other cases, the employer’s inclusion of specific examples to clarify policies may be used to support the argument that employees would not interpret work rules in a manner that infringes on their Section 7 rights. Additionally, the importance of “considering the employee Code of Conduct as a whole” was integral in the ALJ’s upholding of multiple policies that applied to lawful conduct clarified in previous rules.

The ALJ’s decision also highlights the issue of competing precedents, particularly relating to rules that govern the usage of company brands and logos outside of the workplace. As discussed in the opinion, the precedents set by Pepsi-Cola and Flamingo Hilton-Laughlin have led to divergent decisions in subsequent cases (see, e.g., Shadyside Hospital (April 19, 2013) (holding that under Pepsi-Cola, a rule banning usage of the company logo in social media posts without written permission is unlawful because restricts Section 7 rights) and General Motors, LLC (May 30, 2012) (finding a similar bar on usage of the company logo lawful under Flamingo Hilton-Laughlin, given an absence of unlawful promulgation or discriminatory application)).

Similarly, work rules regarding the prohibition of recording conversations have also been subject to opposing rulings (see, e.g., Whole Foods Market (Oct. 30, 2013) (upholding rule forbidding recording of conversations with a recording device) and Professional Electrical Contractors of Connecticut (June 4, 2014) (striking down rule prohibiting recording)). While the growing number of decisions on work rule cases may help to remove some of the ambiguities in this area of the law, the seeming inconsistencies in case results and guidance often leave questions of legality that can prove as perplexing for ALJs as they are for employers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Proskauer - Labor Relations | Attorney Advertising

Written by:

Proskauer - Labor Relations
Contact
more
less

Proskauer - Labor Relations on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.