In a rare victory for employers, the NLRB’s Office of the General Counsel, Division of Advice (“Advice”) recently opined that Boeing Company’s Code of Conduct does not run afoul of the National Labor Relations Act. An Advice memorandum rejected a union’s charge that Boeing’s nearly decade-old Code of Conduct interferes with or restrains Section 7 activity by employees.
The following language in the Code of Conduct was viewed as potentially problematic:
- Employees will not engage in conduct or activity that may raise questions as to the company’s honesty, impartiality, reputation or otherwise cause embarrassment to the company.
- I will not engage in any activity that might create a conflict of interest for me or the company.
- I will follow all restrictions on use and disclosure of information. This includes following all requirements for protecting Boeing information and ensuring that non-Boeing proprietary information is used and disclosed only as authorized by the owner of the information or as otherwise permitted by law.
Advice ultimately concluded, however, that this language does not violate the NLRA, primarily because of the context in which the language is found. Specifically, the Code of Conduct is contained within Boeing’s 43-page Ethical Business Conduct Guidelines, and the Guidelines provide many examples of prohibited conduct, such as bribery and insider trading. This led Advice to conclude that reasonable employees would understand that the document targets potential ethical lapses rather than protected concerted activity.
Advice also noted that, although the Guidelines do not explicitly inform employees that their Section 7 activities are not covered by the Code of Conduct, they do direct employees seeking guidance to an online “frequently asked questions” page that includes the following statement: “The Code of Conduct does not affect an individual’s ability to exercise his/her constitutional, statutory or other protected rights.”
Finally, Advice pointed out that union representatives are present at new employee orientations where the Guidelines are presented. Advice reasoned that the union’s presence at these orientations would lead employees to believe that Boeing’s restrictions on using company assets and information would not extend to communications between employees and union representatives.
The Union’s crusade against Boeing’s nearly decade-old Code of Conduct highlights the importance of making sure that language contained in employee codes of conduct is sufficiently insulated from challenge under the NLRA. The NLRB Advice Memo provides a nice roadmap for doing so. In particular, employers may want to consider including examples of clearly illegal or unprotected conduct to flesh out what otherwise might be viewed as objectionable policy language. And, while it might not make business sense to invite union representatives to new employee orientations, employers should strongly consider including language in their codes of conduct that explicitly informs employees that Section 7 activities are not covered.