The National Labor Relations Board, Office of the General Counsel, recently issued an Advice Memorandum, finding an employer’s “Code of Conduct” policy did not violate Section 8(a)(1) of the National Labor Relations Act. On the surface, this appeared to be a brief respite in the Board’s trend of finding a myriad of statements, policies, and other handbook provisions unlawful. But closer inspection does not offer as many practical solutions as employers may hope. The Code of Conduct is a 43-page Ethical Business Conduct Guidelines manual. The bulk of the manual sets forth the employer’s business ethics policies and additional business compliance issues, with examples. In addition, the employer presents, distributes, and discusses the material at a mandatory, day-long training and orientation where both employees and union representatives are present. The company provides further online resources, which include a Frequently Asked Questions section, dedicated to clarifying the policy. It is in the online FAQs that the employer defines the scope of the policy by saying it does not apply to employees’ “constitutional, statutory, or other protected rights.” These monumental facts, as well as others, led to the recommendation that the Region dismiss the charge alleging the policy violated Section 8(a)(1) by restricting employees’ Section 7 activities.
While not every employer could sustain all of the components the Board assessed in dismissing the charge, there are useful points within the memorandum. First, the Board affirmed its two-step inquiry to determine if an employer has unlawfully maintained a work rule or policy:
First, a rule is unlawful if it explicitly restricts Section 7 activities. Second, if the rule does not explicitly restrict protected activities, it will nonetheless be found to violate the Act upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
Second, citing Lutheran heritage Village-Livonia, 343 NLRB 646 (2004), the memorandum reminds us, and hopefully the Board, that “the Board has cautioned against ‘reading particular phrases in isolation,’ and will not find a violation simply because a rule could conceivably be read to restrict Section 7 activity. Instead the potentially violative phrases must be considered in the proper context.” The Board added that rules should clarify and restrict their scope by including examples so that the rule cannot be reasonably construed as covering protected activity. Query whether this is the unfortunate path the Board is leading employers down: to require multiple pages of explanations in order to find with unmistakable clarity that a rule does not and could not be read to restrict employees’ rights under the NLRA. Only time and further Board decisions will tell.