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NLRB General Counsel Issues Guidance to Employers on ‘Chilling Effects’ of Personnel Policies Under National Labor Relations Act

In its bid to make the National Labor Relations Act more relevant, especially to unrepresented employees who comprise a large majority of the nation’s workforce, the National Labor Relations Board is aggressively policing employee handbooks and other employer policies that it believes “chill” employee rights under the NLRA. Following a number of recent NLRB decisions focusing on the lawfulness of employer rules/policies, the NLRB’s Office of the General Counsel has issued guidance for the stated purpose of assisting employers in reviewing internal personnel policies to ensure compliance with the NLRA. Memorandum GC 15-04 was released to the public on March 18, 2015.

The General Counsel’s Office is responsible for enforcing the unfair labor practice provisions of the Act by investigating charges of violation and bringing complaints before administrative law judges and the Board. General Counsel Richard F. Griffin, Jr. said in a letter accompanying the Memorandum that he believes “most employers do not draft their employee handbooks with the object of prohibiting or restricting conduct protected by the National Labor Relations Act,” but that “even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act” are not allowed. 

Mr. Griffin noted that under the Board’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), “the mere maintenance of a work rule” may violate the NLRA if the rule “has a chilling effect on employees’ Section 7 activity.” Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Mr. Griffin explained that even if a work rule does not explicitly prohibit such activity, it still will be found unlawful if “employees would reasonably construe the rule’s language to prohibit Section 7 activity.” 

Of course, determining what language employees would “reasonably construe” as prohibiting Section 7 activity is a challenge for employers. The Memorandum offers a mixed bag. Reviewing several categories of employer rules/policies relating to: confidential information; employee misconduct; employee communications with third parties; use of logos, copyrights and trademarks; use of photography and recording devices; restrictions on employees leaving work; and conflicts of interest, the General Counsel presents examples that variously were found to be lawful or unlawful. 

But many employers will find the Memorandum falls short. Well-intentioned as it may be, it fails to bring significant clarity to the handbook rule/employer policy issue. Throughout the Memorandum, the General Counsel distinguishes strikingly similar language found lawful in one instance, but unlawful in another, often opaquely, by citing “context.” Take the following example:

Unlawful: “‘Taking unauthorized pictures or video on company property’ is prohibited.”

Lawful: “No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.” 

While these two rules seem to convey the same message, the General Counsel reached different results. The General Counsel concluded that the former rule could be read to unlawfully prohibit all employee use of cameras, including attempts to document health and safety violations. The latter rule, on the other hand, was lawful, according to the General Counsel, because it was located in a manual following a separate rule regarding how to deal with reporters, so that employees would read the rule as prohibiting “news cameras” rather than employees’ own cameras. 

The lesson from this example, and the Memorandum overall, is that employers who simply copy the language the General Counsel considers “lawful” in the Memorandum do so at their peril. The language always must be viewed in context and in light of the employer’s practices, other policies, and procedures. 

The General Counsel also described a number of policies the NLRB found unlawful in a case involving a large franchise food operation. The General Counsel published the policies as they were revised pursuant to an informal, bi-lateral Board settlement agreement with the employer. While this offers some insight, it does not obscure the warning which is conveyed: context matters. 

Jackson Lewis P.C. © 2017

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Matthew D. Freeman, Jackson Lewis, Boston, absence issues lawyer, wage hour litigation attorney
Principal

Matthew D. Freeman is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He routinely advises clients regarding compliance with state and federal labor and employment laws, including those related to employee discipline and discharge, disability management and leave of absence issues, wage and hour issues, and reductions in force.

Mr. Freeman also regularly advises clients regarding traditional labor law issues, including employer rights and obligations under collective bargaining agreements and the...

(617) 367-0025
Philip B. Rosen, Jackson Lewis, Preventive Practices Lawyer, Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

212-545-4000
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

617-367-0025