NLRB general counsel issues new advice memoranda

Mike Zinser

In December 2018, new NLRB General Counsel Peter Robb issued several new advice memoranda. Advice memoranda advise local NLRB offices about how to proceed with a particular unfair labor practice charge.

In one such memorandum, the employer's "Commitment to My Coworkers" policy was found to be lawful. The employer required all employees to read and sign a "Commitment to My Co-Workers" document, which included the following provisions:

• I will accept responsibility for establishing and maintaining healthy interpersonal relationships with you and every member of this team.

• I will talk to you promptly if I am having a problem with you. The only time I will discuss it with another person is when I need advice or help in deciding how to communicate with you appropriately.

• I will not complain about another team member and ask you not to as well. If I hear you doing so, I will ask you to talk to that person.

• I will be committed to finding solutions to problems rather than complaining about them or blaming someone for them and ask you to do the same.

• I have reviewed policies 47, 61 and 62 from the Employee Guidebook as well as Policy A of the Communication Guidebook that states the use of my cell phone is prohibited by all [employees] unless during my scheduled breaks and I should only use my cell phone in our designated locations.

In finding this document to be legal, General Counsel Robb determined that the rule addressed relationships among coworkers; the employer had significant interests in fostering harmony and stability, including keeping the workplace harassment free, preventing violence, and avoiding unnecessary conflict or a toxic work environment that could interfere with their activity and other legitimate business goals.

Along with the previous finding, General Counsel Robb also found the following rules to be lawful:

• A rule prohibiting the use of cell phones except during scheduled breaks and in designated break areas. He recognized that employers have a substantial interest in security, the protection of property, the protection of proprietary, confidential and customer information, avoiding liability and maintaining the integrity of the operation.

• A social media policy that prohibits employees from speaking on behalf of the employer when posting online and requires them, when engaging in online activity relating to the employer, to post a disclaimer stating, "The things expressed on this site are my own and not those of the employer." General Counsel Peter Robb said this is lawful, recognizing the employer's general legitimate interest in having only authorized individuals speak for the company.

• The prohibition of employees using the employer's logo and other intellectual property. The employer has a strong interest in protecting its intellectual property which could have significant value and can result in significant financial loss if the employer fails to place restriction on their use.

• A confidentiality policy protecting information of patients, coworkers and other employees in addition to confidential or proprietary information about the employer or the employer's finances, business strategy or any other information that has not been publicly released by the employer. General Counsel Robb stated this policy was lawful as it would not be reasonably read to prohibit employees from engaging in Section 7 rights to discuss wages or working conditions.

These advice memoranda are a breath of fresh air. New General Counsel Peter Robb is bringing back common sense when reviewing employer handbook policies. Employers have a right to maintain civility in the workplace.

Kentucky right-to-work law is constitutional

The Supreme Court of Kentucky rejected constitutional challenges to its right-to-work law by a local union and the State AFLCIO. The court noted that Section 14(b) of the Taft Hartley Act expressly permits states to pass right-to-work laws. The law had a rational basis because the legislature could clearly make a policy decision that the law might result in more jobs and benefit the overall economic climate of Kentucky.

The court noted that law applied to all employers and all employees, both public and private. It was clearly legitimate for the state legislature to promote economic development, promote job growth and to remove Kentucky's economic disadvantages in competing with neighboring states.

Union information request is not valid

The NLRB's Division of Advice recently opined that an employer was required to answer a union's information request about how a company would spend its corporate tax savings from the 2017 Tax Cuts and Jobs Act ("TCJA"). The union stated its purpose for the request was to prepare for bargaining and "to ensure the tax cut raises wages and stops the offshoring of jobs." The employer refused to provide the information.

The NLRB decided there was no duty to provide the information because "the Union has failed to identify any provision in the TCJA obligating the Employer to spend its tax savings toward the union's preferred objectives." The NLRB concluded that how the employer chose to spend its tax savings was an entrepreneurial decision.

The NLRB also rejected the union's second argument that it needed the information to bargain about business and 401k matches. The union failed to show the information was reasonably necessary to frame or support any union bargaining proposals.

Illegal actions are not protected by Title VII

Suppose one of your employees filed a charge of discrimination with the EEOC. Suppose further that the employee, to support the charge, without authorization, copies confidential personnel files and gives them to the EEOC. When you learn about this, you fire the employee for violating your confidentiality policy. The employee then files a new charge, claiming retaliation for her protected activity of gathering evidence to support the original charge.

In a recent case, the U.S. Court of Appeals for the 4^th Circuit ruled against the employee's retaliation claim. It concluded that the employee violated a state law by "knowingly and willingly examining, removing, or copying any portion of a confidential personnel file" without authorized access. The court stated that the illegal actions do not constitute protected activity under Title VII. Further, "it was loath" to provide employees an incentive to rummage through confidential files looking for evidence.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.