NLRB’s General Counsel’s Office Releases Seven New Advice Memos

By Jonathan Turner

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On July 13, 2018, the National Labor Relations Board (NLRB) released seven new memos from its Division of Advice, which is part of the NLRB’s Office of the General Counsel.  The memos resulted from requests for guidance by various NLRB Regional Directors on cases their offices were handling.  The General Counsel’s office can release advice memos to the general public at its discretion after a case has been closed.  The earliest of the seven memos was issued in 2014 and the latest is dated June 14, 2018. 

In the latest memo, pertaining to Lyft, Inc., the NLRB’s Division of Advice agreed with the conclusion by the Regional Director of the NLRB’s San Francisco field office that two rules in Lyft’s terms of service agreement involving intellectual property and confidentiality were lawful.  The intellectual property rule barred use of the company’s logo without written permission, and the confidentiality rule barred individuals from using or disclosing so-called “user information” and other proprietary material relating to Lyft’s business.  A union challenged the rules, alleging that they were illegally overbroad under the NLRB’s Boeing standard (which was recently clarified in a memo issued by the NLRB’s General Counsel).  In short, in Boeing, the NLRB delineated three categories of employment policies, rules, and handbook provisions: (1) Category 1 rules include rules that could not reasonably be interpreted to interfere with NLRA rights or because any such interference is outweighed by the employer’s business justification –rules in this category generally are lawful to maintain; (2) Category 2 rules include rules that warrant “individualized scrutiny” in each case to determine whether they prohibit or interfere with NLRA rights and, if so, whether any adverse impact is outweighed by legitimate justifications; and (3) Category 3 rules include rules that on their face prohibit or interfere with NLRA-protected rights, and the adverse impact on any such rights is not outweighed by justifications associated with the rule.  In Lyft, the Division of Advice determined that, under the Boeing standard, the intellectual property rule qualified as a Category 1 rule.  It also determined that the confidentiality rule, although deemed to be a Category 2 rule, was “unlikely to interfere” with rights protected under the NLRA.

Other notable memos released by the Division of Advice on July 13 include:

  • Khumo Tires (issued 06/11/2018): The employer’s social media policy was facially valid under the Boeing standard and the employer did not violate Section 8(a)(1) of the NLRA by discharging an employee for violating that policy where the employee took a picture of a bonus form and posted it on Facebook, knowing the colleague from whom the employee had received the form had improperly taken if off the team leader’s desk to photocopy.
  • Prime Source Building Products (issued 10/20/2017): A lawsuit by the Employer seeking to enforce a non-disclosure provision in employment agreements against its former employees violated Section 8(a)(1) where the Region determined that (1) the non-disclosure provision was unlawfully overbroad and (2) portions of the lawsuit had or have the illegal objective of seeking to enforce the non-disclosure provision’s overbroad language. In addition, portions of the lawsuit were preempted because they sought to enforce a contractual provision that was at least arguably prohibited by the NLRA.
  • United States Postal Service (issued 5/21/2015): The USPS improperly failed to bargain with the union when it reached a deal with Staples Inc. that would have resulted in Staples workers performing bargaining unit work in its stores, such as selling stamps and providing certain mail services. “[T]his outsourcing of bargaining unit work under the Staples agreement was a mandatory subject of bargaining and [] the employer’s unilateral action constituted a mid-term contract modification in violation of Section 8(d) [of the NLRA] or, in the alternative, an unlawful unilateral change in violation of Section 8(a)(5) and (1).”

As noted, the earliest of the recently-released memos was issued in 2014, during the Obama administration.  The more recent memos that were issued beginning in the summer of 2018 reflect the current administration’s more flexible business approach, especially as it pertains to the legality of employer policies and procedures.

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