More NLRB Advice Memos – Cooperation in Investigations, Workplace Policies, and Facebook Posts


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. Five additional memos were issued in March, one of which was originally prepared years earlier, with the others prepared more recently. 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:

Nuance Transcription Services, Inc. (Nov. 14, 2018). The OGC concluded that a directive to an employee to cooperate in employer investigations into workplace misconduct did not violate the National Labor Relations Act. It distinguished such a directive from one requiring employees to participate in an investigation regarding an unfair labor practice charge, which would be illegal, as the employer must specifically inform employees that such participation is strictly voluntary.

The OGC also found several handbook policies to be illegal, 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 requirement to keep the handbook and its contents confidential, as that would preclude employees from discussing policies regarding employee pay, benefits and working conditions with unions and other third parties; (2) a ban on non-business use of the email system, since that runs counter to current Board law which permits use of the email system during non-working time for protected communications under the Act; and (3) a restriction on the disclosure of payroll information, as employees have the protected right to discuss terms and conditions of employment including pay.

North West Rural Electric Cooperative (Sept. 21, 2015). The OGC found that an employee’s Facebook posts discussing workplace safety concerns constituted protected concerted activity regarding the terms and conditions of employment, even though they were not part of a direct dialogue with coworkers. According to the OGC, the posts involved mutual aid or protection, and the employee was engaged in concerted activity with other statutory employees through an online community for electrical workers. In the alternative, the OGC concluded that discussions of health and safety issues are “inherently concerted” and subject to the protection of the Act.

ADT, LLC (July 31, 2018). The OGC examined a number of handbook rules under the Boeing test and found the following to be lawful: (1) a dress code policy that prohibited the wearing of “any items of apparel with inappropriate commercial advertising or insignia,” because the policy would not be reasonably understood to apply to protected union insignia; (2) a confidential information policy, which restricts employees with access to such information from discussing or divulging it, as such policy would not be understood to prohibit the sharing of employee names and addresses obtained separately without resorting to the employer’s files; and (3) a media relations policy stating that “all information provided to media, financial analysts, investor or any other person outside the [Employer] may be provided only by [Employer] designated spokesperson or [Employer] officers,” as it would be reasonably construed as only limiting who may speak on the employer’s behalf and not as prohibiting all employee contact with the media.

On the other hand, the OGC found unlawful a rule limiting the use of personal cell phones to “work-related or critical, quality of life activities only,” with the latter defined as communications with service or health providers who cannot be reached during a break or after business hours. The rule also prohibited text messaging and photography during working hours. Therefore, this rule inappropriately restricted the right of employees to communicate with each other during lunch or break periods, as it was not limited to “working time.”