Board steers a sharp 180 in the application of Section 7 to handbooks and policies

During President Obama’s administration, the NLRB substantially expanded its scrutiny of handbooks, workplace rules and workplace policies that, it felt, conflicted with Section 7 of the National Labor Relations Act. Section 7 is the part of the Act that permits both unionized and non-unionized workers to act together in concert to further their wages, hours and working conditions.

On June 6, 2018, NLRB General Counsel Peter B. Robb announced the Board will no longer lean towards finding violations of Section 7 in workplace policies. The General Counsel’s memo implements the Board’s own decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), where it reversed much of the doctrines associated with the Obama-era Board’s Section 7 analysis and the General Counsel’s previous memo in December 2017.

Now the Board is directed to no longer err on the side of finding a violation when it determines language is merely on its face, without evidence of actual anti-union animus, potentially ambiguous.

Regions should now note that ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.

NLRB General Counsel advised Board personnel that, now, the following types of policies should be considered presumptively lawful:

• Civility codes (for example, policies that prohibit language or behavior that is offensive, rude, discourteous, negative, annoying, disparaging, condescending, etc.)
• Rules that prohibit photography/recording in the workplace
• Rules that prohibit insubordination or non-cooperation
• Rules that prohibit disruptive or boisterous conduct
• Rules that protect confidential, proprietary or customer information
• Rules that prohibit defamation or misrepresentation
• Rules that protect company logos and I.P.
• Rules that prohibit speaking on behalf of the company without authorization
• Rules that prohibit disloyalty, nepotism or self-enrichment

NLRB General Counsel advised Board personnel that, now, the following types of policies will no longer be considered presumptively unlawful, but rather will now require individualized analysis of the particular circumstances of each case:

• Rules that prohibit conflicts of interest “that do not specifically target fraud and self-enrichment”
• Broad confidentiality rules that merely protect “employer business” or “employer information”
• Anti-disparagement rules that prohibit criticizing the company only
• Rules that broadly prohibit the use of a company’s name
• Rules that restrict workers’ ability to speak to media or third-parties on their own behalf
• Rules that prohibit lawful off-duty conduct that is otherwise protected
• Rules that broadly prohibit making any kind of “false or inaccurate statements”

Finally, NLRB General Counsel identified the following as rules that remain presumptively unlawful:

• Rules that prohibit employees from discussing their wages, hours and working conditions
• Rules that prohibit employees from disclosing their own wages, hours and working conditions to the media
• Rules that prohibit employees from joining “outside organizations”

NLRB General Counsel also cautioned that the Board’s historical (pre-Obama era) approach to the following types of policies remains unchanged:

• Solicitation/distribution policies
• Workplace access policies
• Uniform policies (to include rules re buttons, tshirts, etc.)

Source: NLRB General Counsel Memorandum GC 18-04 (6/6/18).