Rats! Rules! Even More NLRB Advice Memos

The National Labor Relations Board’s Office of the General Counsel (OGC) continues to issue Advice Memoranda, as it has regularly done for the past year or so. In addition to the memo discussed elsewhere in this E-Update, eight additional memos were issued in May, the earliest of which was prepared in February 2017, with the others coming in the last year or so. Notably, many of the principles articulated in the memos, particularly with regard to employer policies, apply to both non-union and union employers. Of particular interest are the following:

IBEW Local 134 (Summit Design + Build) (Dec. 20, 2018). The OGC found that, by erecting a large, stationary banner misleadingly proclaiming a labor dispute with a neutral employer, along with a large, inflatable “fat cat” strangling a construction worker, the union engaged in unlawful secondary picketing under the National Labor Relations Act. The Act protects both unions’ rights to legitimately pressure employers with whom they are engaged in a labor dispute and neutral businesses’ rights to be shielded from such labor disputes. The Board has held that “picketing urging a boycott of the neutral employer is coercive and therefore unlawful.” Picketing has been defined in a broad and flexible manner, with a wide range of activities found to be tantamount to picketing.

Under the Obama administration, however, the Board determined that the display of an inflatable rat did not necessarily constitute picketing. Similarly, it had previously found that the display of stationary banners claiming labor disputes with neutrals was not a violation of the Act. The OGC, however, recommended that the Board revisit those decisions in order to conclude that the similar activities in question here constituted illegal picketing. The OGC further stated that any argument that the union had a First Amendment right to engage in such “speech” was invalid, as “the First Amendment does not shield unlawful secondary picketing.”

In the alternative, even if the conduct did not amount to picketing, the OGC advised that the union’s activity still amounted to unlawful coercion or restraint under the Act, in that the conduct “overstepped the bounds of propriety and went beyond persuasion so that it became coercive to a very substantial degree.” The OGC noted that, under those circumstances, the Board would have to weigh the union’s First Amendment rights, which would be entitled to lesser protection because the conduct is commercial or labor speech, not primarily in the public interest.

Ally Financial, Inc. (July 5, 2018). The OGC considered whether the employer’s following work rules were lawful under the National Labor Relations Act, utilizing the Boeing test that the Board articulated in December 2017 and that we fully discussed in our December 15, 2017 and June 8, 2018 E-Lerts: (1) a policy prohibiting insubordination, neglect of duties or other disrespectful conduct, including refusal to perform work or comply with a supervisor’s instructions; (2) a policy prohibiting solicitation or distribution of literature without management or HR approval; (3) a policy prohibiting conduct not in the best interest of the company; and (4) a prohibition on the use of company supplies or equipment, including email, for solicitation and distribution. Under the Boeing test, rules are divided into three categories, depending on whether they (1) are lawful, (2) warrant individualized scrutiny, or (3) are unlawful.

The OGC determined that the first rule was a presumptively lawful Category 1 rule, because employers have a legitimate and substantial interest in preventing the identified behaviors and expecting employees to perform their work and follow instructions. The others were found to be unlawfully overbroad Category 3 rules in that they banned protected activities. The solicitation and distribution rule violated employees’ well-established rights to solicit during non-work time and to distribute literature during non-work time and in non-work areas. The reputational rule impacts employees’ rights to engage in protected concerted or union activity that could negatively impact an employer’s reputation, such as strikes, protests, boycotts, and other “public expressions of workplace dissatisfaction.” And finally, the use of company equipment rule violates the Board’s ruling in Purple Communications, to the extent it restricts employees’ rights to use an employer’s email system during non-working time to engage in protected communications.

Vistra Energy (April 1, 2019). The OGC found that the employer did not violate the National Labor Relations Act when it refused to deduct and remit dues to the union after the original local’s amalgamation into another local. The specific language of the employees’ dues checkoff authorization forms only authorized payments to the original local, without mention of “successors and assigns,” even given the “substantial continuity” of the union representation.