NLRB Sets New Tone on Section 7 Workplace Rights

Instructional materials and posters on the National Labor Relations Act (NLRA) and virtually every compliance issue a business could ever face are available in our online Digital Workplace Compliance Library, a vast and invaluable resource. You could be relying on it daily if you sign up for an annual compliance plan with Personnel Concepts. Watch our YouTube video for more information. The decision by the National Labor Relations Board (NLRB) in a case known as The Boeing Company on June 6, 2018, gave General Counsel Peter Robb the opportunity to clarify, modify and in some cases reverse guidelines issued by the Obama-era NLRB regarding employer workplace rules, or policies. Generally speaking, these rules may or may not affect, interfere or prohibit “protected, concerted activity” by employees as guaranteed by Section 7 of the National Labor Relations Act (NLRA). In a memorandum, Robb divided these rules into three categories: Peter Robb, NLRB General Counsel CATEGORY 1 RULES: Rules falling into this category are generally lawful because, “when reasonably interpreted,” they do not prohibit or interfere with Section 7 rights, or because any possible adverse impact they may have is outweighed by business justifications. Examples include:

• Civility rules
• No photograph and no recording rules
• Insubordination, non-cooperation and on-the-job conduct rules
• Disruptive behavior rules
• Confidentiality, proprietary and customer information rules
• Defamation and misrepresentation rules
• Speaking-for-the-company rules
• Disloyalty, nepotism and self-enrichment rules

CATEGORY 2 RULES: These rules on the surface are neither obviously lawful nor obviously unlawful and must be evaluated on a case-by-case basis. Examples given were:

• Broad conflict-of-interest rules
• Broad confidentiality rules
• Rules regarding use of employer’s name (as opposed to logo or trademark)
• Speaking-to-the-media rules
• False or inaccurate statement rules
• Off-duty conduct rules

CATEGORY 3 RULES: These rules are generally unlawful because they prohibit or limit NLRA-protected conduct and cannot be justified by any business need. Examples given were:

• Confidentiality rules regarding wages, benefits or working conditions
• Rules against joining outside organizations or voting on matters concerning the employer