And Even More NLRB Advice Memos – Work Rules, Communication Practices, and the Union’s Duty of Fair Representation


In addition to the dues revocation advice memo discussed elsewhere in this E-Update, the National Labor Relations Board issued another eight advice memoranda from the Office of General Counsel this month, some originally written years ago. These memoranda reflect the General Counsel’s recommendations on issues facing the Board, which may then be adopted by the Board. Some 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:

Colorado Professional Security Services (Aug. 17, 2018). The OGC found the employer’s following work rules to be overbroad, utilizing the Boeing test that it articulated in December 2017 and that we fully discussed in our December 15, 2017 and June 8, 2018 E-Lerts: (1) a “harm to Business or Reputation” policy that prohibited criticism by employees; and (2) language prohibiting employees from discussing their discipline with co-workers and clients. Under the Boeing test, which divides rules into three categories, depending on whether they (1) are lawful, (2) warrant individualized scrutiny, or (3) are unlawful, the OGC determined that these rules were Category 2 rules in which the impact on employee rights outweighed the employer’s legitimate business interests.

St. Barnabas Medical Center (Mar. 22, 2019). In a recently-prepared memo, the OGC found that the employer did not violate the National Labor Relations Act when it unilaterally ended its practice of having nurse managers and supervisors respond directly to phone call, emails, and text messages from the union representative concerning union-related matters, including grievances, while increasing Human Resources’ involvement in grievances. The OGC found such changes in communication practices to be not material or significant.

Sheet Metal Workers, Local 312 (Schoppe Co.) (Oct. 22, 2018). The OGC determined that the union violated an employee’s rights under the National Labor Relations Act by handling the employee’s grievance in an arbitrary manner and willfully misleading the employee about the status of the claim. Although a union is allowed a wide range of reasonableness and is not required to process every grievance that it receives, it may not breach its duty of fair representation, which requires it to represent the interests of its members fairly, impartially and in good faith. In this case, the union ignored the grievance and failed to take any action to file or investigate the matter, while falsely telling the employee that it was working to resolve it.