NLRB Work Rule Decisions Continue to be a Mixed Bag

by Proskauer - Labor Relations

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.

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