An Avalanche of NLRB Advice Memos – Workplace Policies, the Tax Cuts and Jobs Act of 2017, Disciplinary Warnings, and Media Contacts

The National Labor Relations Board’s Office of the General Counsel (OGC) continues to issue Advice Memoranda, as it has done throughout 2018 and as we previously discussed in many of our monthly E-Updates. Eleven additional memos were issued throughout December, one of which was originally prepared years earlier, with the others prepared earlier this year. 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:

Shelby County Memorial  Hospital Association d/b/a Wilson Health (June 20, 2018). In this memo, the GC addressed a “Commitment to My Co-workers” document and a number of workplace policies, finding some to be lawful under the National Labor Relations Act and others not, under the standards that the Board articulated in the 2017 case of Boeing Co. Under the Boeing standard, the Board determines whether a reasonable interpretation of a facially neutral employer work rule potentially interferes with employees’ Section 7 rights to engage in concerted activity regarding the terms and conditions of employment by examining (1) the nature and extent of the potential impact on Section 7 rights, and (2) legitimate business justifications associated with the requirement(s). Under this test, rules may be classified as Category 1 (lawful), Category 2 (rules warranting individual scrutiny), and Category 3 (unlawful).

The “Commitment to My Co-workers” document was found to be a lawful Category 1 policy. It contained a number of pledges including: to accept responsibility for establishing and maintaining healthy interpersonal relationships; to talk promptly and directly with a co-worker about any problems; to refrain from complaining about others; to commit to finding solutions to problems; and to refrain from using cellphones except during scheduled breaks and in designated locations. In Boeing, the Board found that employers may establish rules requiring “harmonious relationships” and “civility” in the workplace. Specifically, the GC determined that the rule addressed comments about co-workers, as opposed to comments about the employer (which is subject to greater protection under Section 7), and the employer had significant interests in fostering harmony and civility, including keeping the workplace harassment-free, preventing violence, and avoiding unnecessary conflict or a toxic work environment that could interfere with productivity, patient care, and other legitimate business goals.

Another Category 1 rule was prohibiting the use of cellphones except during scheduled breaks and in designated break areas. In Boeing, the Board found “no photography” rules to be Category 1, recognizing that employers have substantial interest in security, the protection of property, the protection of proprietary/confidential/customer information, avoiding legal liability, and maintaining the integrity of operation. In addition, patient privacy issues are of particular concern in a healthcare setting. Moreover, the rule does not impose a total ban on the use of cellphones.

Several policies fell within Category 2, requiring individualized scrutiny. This included a policy that restricted the use of email, the Internet, blogs, and voicemail for business purposes only. The restriction as to email was found to be unlawful under the Board’s decision in Purple Communications, in which it held that “employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time.” The employer’s stated interest in HIPAA compliance and patient confidentiality could be addressed by less than a total ban. Notably, the Board’s GC has previously indicated an interest in reexamining Purple Communications, but at the present time it remains Board law.

Another Category 2 policy prohibited disparaging comments about the employer in outside blogs. Although an employer may restrict employees’ ability to criticize its products or services, the ability to criticize the employer itself is a core right under Section 7, and therefore the GC found the rule to be unlawful.

The employer’s social media policy prohibits employees from speaking on behalf of the employer when posting online, and requires employees engaging in online activity relating to the employer to post a disclaimer stating, “The  views expressed on this site are my own and not those of [the Employer].” The GC found this to be a lawful Category 2 policy, based on the employer’s legitimate interest in requiring that only authorized individuals speak for the company. The GC further found that it is lawful to prohibit employees’ use of the employer’s logo or other intellectual property, as the employer has a strong interest in protecting its intellectual property, which can have significant value and can result in significant financial loss if the employer fails to police its use.

Confidentiality policies regarding customer information or trade secrets are Category 1 rules, while general confidentiality policies fall into Category 2. In this case, the employer’s policy protects the information of “patients, co-workers or other employees” in addition to “confidential or proprietary information about the employer or the employer’s finances, business strategy, or any other information that has not been publically released by the employer.” The GC found this policy to be lawful, as it would not reasonably be read to prohibit employees from engaging in their Section 7 rights to discuss wages or working conditions. Of note, the GC notes that the policy is lawful “even if the policy is not worded as perfectly as possible.”

Nexstar Media Group, Inc. (October 15, 2018). The GC found that the employer did not violate Section 8(a)(5) of the Act when it refused to provide the union with information concerning the financial benefit it received from the Tax Cuts and Jobs Act of 2017 and its plans for that money.

Section 8(a)(5) requires an employer to bargain in good faith with employees’ representative, which includes the duty to provide relevant information necessary for the union’s performance of its statutory duties as a collective-bargaining representative. The union contended that the information was required to ensure that the financial benefit would go to increasing pay and returning jobs to the U.S., as well as to aid it in bargaining about bonus payments and 401(k) contributions. The GC determined that the requested information was not relevant and necessary to the union’s performance of its statutory function, particularly as there is no legal obligation for the employer to spend its tax savings towards the union’s preferred objectives. According to the GC, “the Employer’s decisions about how to spend its tax savings are not a mandatory subject of bargaining” and therefore there is no duty to furnish information about it.

Norwalk Meadows Nursing Center, LP (May 10, 2018). The GC reiterated the general principle that, upon written request, an employer is obligated to engage in bargaining with a union over disciplinary warnings issued to bargaining unit employees following the union’s successful election as the bargaining representative for those employees but before the Board’s certification of those election results. The GC noted that disciplinary actions are “unquestionable a mandatory subject of bargaining” and the union requested such post-implementation bargaining. The GC rejected the employer’s proposition that it had no obligation to bargain over the pre-certification disciplinary actions.

Uber Technologies, Inc. (October 2, 2018). The GC found that the employer violated the Act when it directed employees not to comment about an ongoing employee class action lawsuit and to inform in-house counsel if they were contacted about the case. There was no violation, however, when the employer issued an internal litigation hold instructing employees to preserve all communications with or about the co-worker plaintiff.

The GC found that the directive prevented employees from discussing the lawsuit or the underlying grievance from which it arose with other employees, the media, or other third parties. This right to communicate with each other and third parties about grievances and remedies is a “significant Section 7 interest” of particular interest in the context of a class action, where one employee seeks to represent others. In contrast to the media contact policy addressed in the Shelby County Memorial Hospital Association memo above, this directive was not limited to speaking on behalf of the company, but also sought to regulate the employees’ personal speech.

On the other hand, the litigation hold was lawful, despite the fact that it would include protected speech. The hold did not direct employees to produce the communications, but merely to preserve them for possible production. Moreover, the employer has a legal obligation to preserve evidence, or risk liability and damages for spoliation of evidence. Although the GC noted the lack of authority on whether an employer must produce the private communications of employees, it acknowledged that it was appropriate for employers to err on the side of caution.