Another NLRB Advice Memo on Handbook Rules

The National Labor Relations Board released yet another batch of Advice Memoranda this month. Advice Memoranda contain the recommendations of the Office of General Counsel to the Board on specific issues. Two of the three memos were originally prepared years ago, one on arbitration agreements, which has been subject to further developments since that time (as we discussed in a recent blog post, “Arbitration Agreement May Not Restrict Access to NLRB Processes”), and the other on the limited interest area of project labor agreements in the mining industry. The third and most recent, however, offers further guidance on handbook rules – a topic of perpetual interest to employers, both union and non-union alike.

In Coastal Industries, Inc. d/b/a Coastal Shower Doors, the OGC applied the Boeing analysis to several handbook rules and policies. As the Board set forth in the 2017 case, The Boeing Company rules (which we discussed in detail in a December 2017 E-lert) are divided into three categories, depending on whether they (1) are lawful, (2) warrant individualized scrutiny, or (3) are unlawful. In the current memo, the OGC found the following rules to be lawful Category 1 rules:

• Conduct rules. The rules prohibited various types of behavior, including:
  • “Obtaining unauthorized confidential information pertaining to clients or employees.” Because the rule addresses the accessing or obtaining of confidential information, it does not affect employees’ rights under Section 7 to discuss their terms and conditions of employment.
  • “Rude, discourteous or unbusinesslike behavior; creating a disturbance on Company premises or creating discord with clients or fellow employees.” The OGC found the first part of this rule to be a lawful civility policy, of the type that has previously been approved by the Board. Requiring criticism of fellow employees or supervisors to be civil does not affect the protected right to criticize. As for the second part of the rule, the OGC notes that disruptive behavior rules, such as those that prohibited roughhousing, fighting, dangerous activities, or other bad behavior, are typically lawful.
  • “Unbusiness-like conduct, on or off Company premises, which adversely affects the Company services, property, reputation or goodwill in the community, or interferes with work.” The OGC found the rule to serve the employer’s legitimate interest in maintaining discipline and productivity on-duty, as well as prohibiting offensive or inappropriate conduct off-duty, which is mostly unprotected.
  • “Disparaging, abusive, profane or offensive language” and “illegal activities.” The OGC concluded that the rule is combination of lawful civility policies and on-duty misconduct policies.
• Solicitation rule. The rule stated that solicitation activities during non-working time must be “in good taste.” The OGC found this to be a lawful place/time/method restriction, similar to the civility rule referenced above. It does not prohibit all such protected discussions, but simply those that are inappropriate or unacceptable.
• Electronic assets rule. The rule prohibited employees from using company “electronic assets” to access social media accounts. The OGC refused to extend the Board’s ruling in Purple Communications, which permits employees to use company email systems to engage in protected communications during nonworking time, to any other electronic communications system. Thus the rule was deemed lawful.
• Social media rule, in part. The following provisions were found to be lawful:
  • A prohibition on postings “that reasonably could be viewed as disparaging to employees.” The OGC found this to be a lawful civility rule, as the Board has found a distinction between what employees can say about their fellow employees (not protected) and about their employer (protected).
  • A requirement to self-identify as an employee when posting about the company. The OGC found that this served the legitimate interest of having only authorized individuals speak on behalf of the company.

The OGC found the following to be unlawful Category 2 rules:

• Confidentiality rule. The rule stated that “all information gathered by, retained or generated by the Company is confidential.” The rule’s definition of confidential information was found to be overbroad, as it could easily encompass information such as wages and working conditions, about which employees have a protected right to discuss. Even though the rule specifically stated that it was not intended to infringe upon Section 7 rights, the OGC found this provision insufficient to render the rule lawful as it did not indicate that employees have the right to discuss wages and working conditions.
• Social media rule, in part. The following provisions were found to be unlawful:
  • “Employees should refrain from posting derogatory information about the Company on [social media] sites and proceed with any grievances or complaints through the normal channels.” The OGC found this to be overbroad, as criticism of the employer generally is a protected activity (although an employer may properly ban criticism of the employer’s products or services). In addition, the requirement to pursue grievances through normal channels could chill employees’ protected right to band together or seek the assistance of a union. Again, an NLRA disclaimer could not save this rule, given the clear violations of the Act.
  • A prohibition on posting any company phone number. The OGC found this unlawfully prevented employees from soliciting customers and/or the public to call the employer in support of protected activities. The OGC also noted that the company’s phone number was publicly available on its own website.
• Cell phone rule. The rule prohibited personal cell phone use “during working hours.” However, employees have a protected right to communicate, including through such devices, during non-working time. The use of the term “working hours” was too broad, as it encompasses both working time and non-working time.