The Sophisticated Employer Blog

The National Labor Relations Board (NLRB) tends to flip its position on various issues depending on whether the majority of the board has been appointed by a democrat or republican president. 

A classic example has been whether a non-union employee has Weingarten Rights (the right to representation during an investigatory interview). But for my recent knee surgery, the most recent flip in position by the NLRB would actually make me do the happy dance, because it is such good news for employers!

Who can forget the memorandum of the board’s general counsel’s office during President Obama’s administration that determined that many common work place policies/work rules infringed on rights granted by Section 7 of the National Labor Relations Act (NLRA)? 

Section 7 provides the right of employees to engage in concerted activities for the purposes of collective bargaining and other mutual aid or protection (or to refrain from such activities). The array of polices/work rules cited as potential violations of Section 7 in the Obama era memorandum  included confidentiality, conduct towards coworkers and management, video/audio recordings in the workplace, conflicts of interest, communications with third parties including the media, etc. 

The concern was that by requiring such things as respectful, professional interaction with coworkers and management, the rule may have a chilling effect on an employee who is passionately exercising Section 7 rights. 

I recall my reaction to the Memorandum. I wadded it up and threw it out. But the human resources director at one of my nonprofit clients called and asked if I was going to revise her company’s policies to conform to the memorandum.  So I dug it back out.

Now you understand why I want to celebrate. On June 6, 2018, Peter Robb, the NLRB’s new General Counsel, issued Memorandum GC18-04 as a follow up to the Board’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), which criticized earlier board decisions for prohibiting rules that “could” be interpreted as affecting Section 7 rights as opposed to just those rules that “would.”

The memorandum states that “ambiguities in rules are no longer interpreted against the drafter [the employer], and generalized provisions should not be interpreted as banning all activity that could conceivably be included.” The analysis has always including a balancing of the Section 7 rights of employees against the employer’s need to maintain productivity and discipline in the workplace. Whereas the thumb had been on the scale tilting it in favor of employee rights, the thumb is now removed. Common sense has returned.

To be clear, any policy or work rule that “specifically bans” protected concerted activity remains unlawful. But policies and work rules that are facially neutral and that are not applied against employees who are engaged in concerted activity are now permitted. 

The memorandum divides policies and work rules into three broad categories. “Category 1” rules are generally lawful and address such issues as civility, audio/video recordings, insubordination, disruptive behavior (boisterous, disorderly conduct, creating disturbances), confidentiality of proprietary and customer information (unless it is specific about employees such as wage information), prohibition of defamation and misrepresentations, prohibiting the use of company logos, trademarks, or other intellectual property, rules banning public comments on behalf of employer (unless designated), and  prohibitions of disloyalty, nepotism or self enrichment. 

“Category 2” rules will be scrutinized in how they are worded and how they are applied. This category includes such things as non-disparagement rules that prohibit criticism of the company (as opposed to incivility towards employees), prohibiting the use of the company’s name (as opposed to its logo), prohibiting all communications with the media (as opposed to just doing so on the employer’s behalf), rules against false/inaccurate statements (instead of defamatory statements), etc. 

As you can see, there can be a fine line between what policy is permitted and what is not for Category 2 policies/work rules. However, “[i]n the absence of any Board jurisprudence applying Boeing to a Category 2 rule, Regions should submit all Category 2 rules to Advice”.  This means that the 26 regional offices will, in many cases, be required to seek advice before finding a Category 2 rule unlawful.

“Category 3” policies and work rules are simply unlawful. These include such things as maintaining the confidentiality of information concerning wages, benefits and working conditions, prohibiting membership in outside organizations, or voting on matters concerning the employer. 

The memorandum is full of analysis which will be helpful in determining whether a proposed policy or work rule is overly broad and offensive to the NLRA. 

I have, and it still makes me want to dance!