More NLRB Advice Memoranda…Policies, Non-Disclosure Agreements and Outsourcing


A steady stream of Advice Memoranda continues to issue from the National Labor Relations Board’s Office of the General Counsel (OGC), following up on what we reported in our February 2018, March 2018, May 2018 and June 2018 E-Updates. Seven more memos were issued on July 13, 2018, although the dates that they were originally composed range from 2014 to last month. Of particular interest are the following:

  • Lyft, Inc. (June 14, 2018). Utilizing the Board’s new balancing test set forth in The Boeing Company, which we discussed in a December 2017 E-Lert, the OGC found that the company’s intellectual property policy and confidentiality policy to be “Category 1” rules – meaning that they are lawful. As to the intellectual property rule, which prohibited employee use of the company’s logos without express written approval, the OGC noted that companies have a significant interest in protecting their intellectual property, including valuable trademarks and logos, and preventing employee postings from appearing to be official due to the use of the logo. The OGC also found the company’s confidentiality policy, which prohibits disclosures of “technical, financial, strategic, and other proprietary information,” including “user information” (i.e. driver and rider information), to be reasonably interpreted by employees as not prohibiting activity protected under the National Labor Relations Act (NLRA), including the discussion of wages and other working conditions.
  • Kumho Tires (June 11, 2018). There was no violation of the NLRA when the employer terminated an employee for violating its social media policy. The employee’s sharing of a photo of a team leader’s bonus request form with a social media group of other employees during a union organizing campaign would normally constitute protected concerted activity. Her conduct, however, was unprotected because the employee knew the form had been improperly obtained by a fellow employee.
  • PrimeSource Building Products (Oct. 20, 2017). The OGC found that an employer’s lawsuit against former employees seeking to enforce a non-disclosure provision in their employment agreements violated the NLRA. The non-disclosure provisions were overbroad, in that they prohibited the disclosure of “employee information,” in contravention of the employees’ Section 7 rights to discuss the terms and conditions of their employment.
  • United States Postal Service (May 21, 2015). The USPS violated the NLRA when it unilaterally entered into an agreement with Staples to outsource bargaining unit work to be performed by Staples employees in Staples stores. The outsourcing of bargaining unit work is a mandatory subject of bargaining.