This month, NLRB GC Peter Robb issued guidance on work rules under the Board’s new Boeing standard and on the kinds of cases appropriate for injunction proceedings.
Work Rule Clarity
In Boeing, the Board articulated a new standard for when the mere maintenance of work rules violates the NLRA and identified three categories of rules. In GC Memo 18-04, Robb laid out guidance for Regions (the investigators and prosecutors of the NLRB) on how to interpret Boeing and what kinds of rules fall into which categories. Although the GC’s guidance does not represent Board law, the memo identifies the kinds of cases Regions should/should not prosecute, thus providing helpful direction to employers trying to draft work rules and revise handbooks.
Of note, under “Category 1: Rules that are Generally Lawful to Maintain,” Robb placed the following kinds of rules:
- Civility rules
- No-photography/recording rules
- Rules against insubordination
- Some confidentiality rules
The inclusion of all no-recording rules in Category 1 is interesting because in Boeing, the employer showed significant, industry-specific justifications for its no-recording rule that included national security concerns. Not all employers may have such weighty interests in preventing recording, but Robb’s memo tells Regions not to prosecute such cases anyway.
Under Category 2, rules which require a case-by-case determination, Robb placed:
- Broad conflict-of-interest rules
- Broad confidentiality rules
- Rules on off-duty conduct
- Rules against speaking to the media or third parties
Employers should thus carefully scrutinize those kinds of rules for compliance.
In Category 3 (automatically-unlawful rules), Robb identified rules that will come as no surprise to NLRA-savvy employers (e.g., bans on discussing wages).
No Change to Injunction Philosophy
Robb also issued GC Memo 18-05, which provides Regions guidance on what kinds of cases in which to seek temporary injunctive relief under Section 10(j) of the NLRA. The guidance does not deviate from longstanding practice of seeking injunctions in cases where a failure to obtain quick relief might make any relief meaningless. Such cases include employee discharges during organizing campaigns, violations that occur soon after a new union wins certification, and cases involving a successor-employer’s refusal to hire or bargain.