NLRB Sets New Tone on Section 7 Workplace Rights

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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-new-nlrb-general-counsel

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

NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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