Memorandum GC 15-04 is intended to provide clarity to Board decisions that many employers and practitioners have found to be confusing, especially since some of the decisions overturned rules that were generally accepted in most workplaces for decades.
On March 18, 2015, the General Counsel (GC) of the National Labor Relations Board ("Board") issued Memorandum GC 15-04 to the Regional Offices of the Board with respect to the application of the National Labor Relations Act (the "Act") to conduct and other rules issued by employers to govern employee behavior. Regional Directors are required to follow the General Counsel's interpretations of the Act when deciding whether to issue unfair labor practice complaints. Memorandum GC 15-04 is intended to provide clarity to Board decisions that many employers and practitioners have found to be confusing, especially since some of the decisions overturned rules that were generally accepted in most workplaces for decades.
In the introduction to the Memorandum, the GC acknowledged that most employers do not draft their employee handbooks with the intent of interfering with or prohibiting conduct that is protected by the Act. Nevertheless, the GC continued, "the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act."
The GC noted that the most obvious way a rule would violate the Act would be the restriction of employees from engaging in concerted, including union, activity. However, it is the rare employer that prohibits concerted, including union, activities in its rules. Rather, many employers promulgate workplace rules that prohibit inappropriate workplace behaviors, which the Board has now determined employees would reasonably construe to include concerted activity. Additionally, if an employer promulgates a workplace conduct rule in the face of union activity, the Board is more likely to find that it violates the law. Consequently, in his Memorandum, the GC chose to focus on the recent spate of Board cases that decide whether an employee "would reasonably construe" an employer rule to restrict or prohibit conduct protected by the Act.
The Memorandum focuses on the types of rules frequently at issue: confidentiality, professionalism, anti-harassment, trademark, photography/recording and media contact rules. The rules found to be unlawful include those that prohibit employees from disparaging their employer, engaging in conduct that damages the reputation of their employer, divulging confidential non-medical information of other employees, engaging in offensive or derogatory conduct directed toward another employee, taking photographs of company operations and publishing a company's logo on a personal Facebook page. Whether the Board determines that a particular rule violates the Act is based on the wording of the rule, its context in light of other paragraphs of the provision, whether the rule provides examples and exceptions, the timing of its publication, etc.
What This Means for Employers
While the Board's application of the Act to all rules of conduct cannot be described in a meaningful way in this format, employers should be aware of the changing law in this area and that many of their longstanding workplace policies may be at risk of challenge by the Board, employees or labor unions. Remedies for violations of the Act include, but are not limited to, the re-running of a representation or decertification election in which the employer has prevailed, the reinstatement to employment of a discharged employee with full back pay and benefits and the posting or reading of a notice to employees by a senior executive or manager to the effect that rules of the employer have been found to be in violation of the law and are no longer enforceable.
Employers that have not had their rules of conduct reviewed within the last two years by someone skilled in the application of the National Labor Relations Act to non-union employees may want to consider having them reviewed promptly.