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NLRB Approves Employer's Outside Non-Solicitation/Distribution, Email Signature Block, and Blogging Non-Disparagement Rules
Practical Law Legal Update w-030-4974 (Approx. 5 pages)
NLRB Approves Employer's Outside Non-Solicitation/Distribution, Email Signature Block, and Blogging Non-Disparagement Rules
by Practical Law Labor & Employment
| Law stated as of 02 Aug 2023 • USA (National/Federal) |
In David Saxe Productions, LLC, the National Labor Relations Board (NLRB) found lawful employer policies concerning outside non-solicitation/distribution, email signature blocks, and non-disparagement of the employer in employee blogging.
NOTE: See the UPDATE at the end of this resource for subsequent developments affecting this decision.
On April 5, 2021, in David Saxe Productions, LLC, the panel (Board) heading the NLRB's judicial functions considered the validity of multiple employer work rules. Specifically, the Board:
- Affirmed that Section 7 does not create rights for non-employees seeking access to an employer's workplace and concluded that an employee handbook rule requiring employees to refer to the Human Resources Department any requests by "outside people or organizations" to solicit contributions and distribute literature would not reasonably be construed to restrict employees' Section 7 rights (NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956); UPMC, 368 N.L.R.B. No. 2, slip op. at 2-5 (June 14, 2019)). Accordingly, the employer's outside non-solicitation/distribution policy was properly classified as a lawful Boeing Category 1(a) rule (Boeing Co., 365 N.L.R.B. No. 154 (Dec. 14, 2017)).
- Held that the employer did not violate Section 8(a)(1) of the NLRA by maintaining an email policy prohibiting customized signature lines because:
- the rule prohibits any alteration of the signature block regardless of the business or personal nature of the email, effectively precluding discrimination (against employees for their union or other concerted activity);
- the General Counsel failed to show the employer's disparate treatment of Section 7 messages and messages of a similar character; and
- an employer is not obligated to permit employees to use its email system for Section 7 purposes absent exceptional circumstances not applicable here (Caesars Entm't, 368 N.L.R.B. No. 143 (Dec. 16, 2019)).
- Upheld the employer's blogging work rule under a Boeing Category 1(b) analysis, finding that the business justifications supporting the non-disparagement policy outweighed any adverse impact on employees' Section 7 rights, as they did for similar policies in:
- Medic Ambulance Service, Inc. (370 N.L.R.B. No. 65, slip op. at 4-5 (Jan. 4, 2021); for more information, see Legal Update, NLRB Approves Social Media and Company Information Policy Provisions, Pans Solicitation and Personal Business Rules); and
- Motor City Pawn Brokers Inc. (369 N.L.R.B. No. 132, slip op. at 5-7 (July 24, 2020); for more information, see Legal Update, NLRB Approves Social Media and Company Information Policy Provisions, Pans Solicitation and Personal Business Rules).
Additionally, the Board:
- Concluded that the record evidence did not support an allegation that the employer unlawfully denied light-duty work to a union supporter and assigned more favorable duties to a union opponent.
- Affirmed that challenged ballots cast by unlawfully discharged employees must be counted, consistent with longstanding precedent (F.L. Smithe Machine Co. Inc., 305 N.L.R.B. 1082, 1082 (1992), enfd. 995 F.2d 218 (3d Cir. 1993); Sorenson Lighted Controls, Inc., 286 N.L.R.B. 969, 987 (1987); Crown Distribs., Inc., 210 N.L.R.B. 881, 892 (1974)).
- Adopted an administrative law judge's direction that if the revised tally of ballots does not yield a union majority after the challenged ballots are counted, the election should be set aside and a new election held. The employer's critical-period unfair labor practices and objectionable conduct supported this recommendation.
Employers should consider the Board's analysis when drafting or reviewing the specific types of policies and employee handbooks evaluated here.
UPDATE
On August 2, 2023, a Board majority adopted a new burden-shifting standard for evaluating facial challenges to employer work rules that do not expressly restrict employees' protected concerted activity under Section 7 of the NLRA, overruling Boeing and the subsequent work rules decisions applying the categorical classification system articulated therein (Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023); for more information on this decision, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules).