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NLRB Division of Advice Pans Overbroad Solicitation Rule and Conflicts of Interest Policy, Parses Unlawful Email System Use Ban from Lawful Ban on Use of Other Equipment and Supplies, and Upholds Coaching Despite Overbroad Rule
by Practical Law Labor & Employment
| Published on 16 May 2019 • USA (National/Federal) |
On May 14, 2019, the Office of the General Counsel of the National Labor Relations Board (NLRB) released an advice memorandum considering the lawfulness of employer policies prohibiting insubordination, solicitation and distribution of literature, conflicts of interest, and the use of company supplies or equipment for solicitation or distribution, as well as of a disciplinary coaching notice issued in part based on an unlawfully overbroad rule.
On May 14, 2019, the Division of Advice of the NLRB's Office of the General Counsel (Advice) released an advice memorandum dated July 5, 2018 evaluating the legality of various employer policies under the Board's decision in The Boeing Company, as well as the lawfulness of a disciplinary coaching notice for an employee's poor attendance based in part on an unlawfully overbroad rule (365 N.L.R.B. No. 154 (Dec. 14, 2017)). Advice concluded that Ally Financial, Inc.:
- Lawfully:
- maintained a policy prohibiting insubordination, neglect of duties, or other disrespectful conduct, including the refusal to perform work or comply with a supervisor's instructions (Flamingo Hilton-Laughlin, 330 N.L.R.B. 287, 288-89 (1999)); and
- issued a disciplinary coaching notice to an employee for poor attendance based in part on an unlawfully broad conflicts of interest policy because the employee's conduct was wholly distinct from Section 7-related concerns (The Continental Group, Inc., 357 N.L.R.B. 409, 413 (2011)).
- Violated Section 8(a)(1) of the NLRA by unlawfully maintaining policies prohibiting:
- solicitation or distribution of literature absent the employer's approval, without distinguishing between work and non-work time (Republic Aviation v. NLRB, 324 U.S. 793 (1945); Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615, 621 (1962));
- any conduct or activity that is not in the employer's best interest, because the rule significantly impacts employees' core Section 7 rights and the employer's legitimate business interests can be served by a more limited and clearly defined rule (cf. First Transit, Inc., 360 N.L.R.B. 619, 619 n.5, 629-30 (2014)); and
- the use of employer supplies or equipment for solicitation or distribution, to the extent that it bars employees from using the employer's email system to engage in Section 7-related solicitation on non-working time. However, Advice concluded that the remainder of the rule forbidding the use of telephones, computers, voicemail, copy machines, fax machines, interoffice mail, or regular mail paid for by the employer is lawful under governing NLRB precedent. (Purple Commc'ns, 361 N.L.R.B. 1050, 1063 (2014).)
The practical implications of this decision are as follows:
- Advice memoranda are not binding precedent from the NLRB.
- However, advice memoranda provide insights concerning:
- which kinds of unfair labor practice (ULP) allegations the NLRB General Counsel is likely to prosecute;
- what liability theories the NLRB General Counsel is developing and pursuing; and
- how the NLRB General Counsel is extending, minimizing, combining, or parsing precedent to support prosecuting or dismissing those types of allegations and liability theories.