Sometimes common sense is not so common. By a Memorandum dated January 31, 2017, the General Counsel of the NLRB has taken the position that student athletes at private colleges and universities are employees within the meaning of the National Labor Relations Act, notwithstanding the Board’s issuance of its decision of Northwestern University in 2015 in which it declined to exercise jurisdiction after a representation petition was filed by a union seeking to represent the Northwestern University’s football players.

So does that mean that if a football player has a serious health condition that the football coach will now have to provide FMLA to that player? Or, if the injury is more extreme, must the football coach then reasonably accommodate that player?  Or, pay overtime after 40 hours of practice?  Needless to say, you get my drift.  This has got to be one of the most ridiculous legal positions coming out of the NLRB in a long time.  Once again, the NLRB is extremely myopic and simplistic in terms of their view of the world, not taking into account the myriad of other issues that develop when such an ill-founded decision is made.  In particular, I am sure the NCAA is going to be thrilled with this approach by the Board.  Time and time again, after thorough review, the courts and other federal agencies have refused to adopt the viewpoint that such individuals are employees.  Indeed, as the 7th Circuit recently recognized in the case of Berger v. NCAA, 16-1558 (January 12, 2017), this issue has been settled for years and there is no reason to revisit it.  And while I am hopeful that in a matter of months, when we have a new GC in place at the Board, this memo will be made null and void, but in the interim we continue to have to put up with such nonsense being endorsed as our national labor policy.  Frankly, it is just embarrassing.

On October 3, the National Labor and Relations Board (NRLB) Office of the General Counsel (OGC) issued a Memorandum from the Division of Operations-Management to all Regional Directors, Officers-In-Charge, and Resident Officers.  This Memo (Memorandum OM 17-02) reveals an aggressive new position from the OGC, one which attempts to overturn decades of Board precedent.

For years, the Board has limited workers’ ability to engage in partial or intermittent strikes. In some instances, the Board has used the term “partial strike” to include anything less than a total, traditional strike (where employees completely withdraw their labor and refuse to work until the parties settle the dispute).  This would include intermittent strikes, where employees go back and forth between working and striking.  Other times, the Board has used the term “partial strike” more narrowly to describe more specific types of limited, non-traditional strikes which are situationally distinct from intermittent strikes.  Regardless of the verbiage used, however, the Board has consistently found that Section 7 of the National Labor Relations Act (NLRA), which protects “concerted activity,” does not protect employees engaging in either of these types of limited strikes.  Under current Board precedent, therefore, employees who strike multiple times over the same labor dispute may be disciplined by their employers.

Now, the OGC wishes to dramatically extend Section 7 protection to cover multiple short-term strikes. The Memo states that the Board’s present test for determining whether such strikes are protected “is difficult to apply” and “exposes employees to potential discipline for activities that should be considered protected under Section 7 of the Act.”  Accordingly, the OGC will now be taking the position that the Board should modify the law regarding intermittent and partial strikes.  In furtherance of this effort, the Memo references an attached model brief and instructs its recipients to utilize the analysis contained in the model brief and incorporate those arguments into the General Counsel’s briefs submitted to Administrative Law Judges and the Board.

The arguments contained in the model brief “urge[] the Board to clarify this area of law by drawing clear conceptual distinctions between partial and intermittent strikes and redefining the circumstances under which intermittent strikes become unprotected.” More specifically, the General Counsel proposes a framework where multiple strikes (even if those strikes are over the same labor dispute) would be protected if: (1) the strikes “involve a complete cessation of work, and are not so brief and frequent that they are tantamount to work slowdowns”; (2) the strikes “are not designed to impose permanent conditions of work, but rather are designed to exert economic pressure”; and (3) the “employer is made aware of the employees’ purpose in striking.”  The model brief argues that this framework “more effectively protects” a worker’s right to strike, “dispenses with the unpersuasive rationales” on which the Board has previously relied, and “better addresses Supreme Court precedent.”

Unfortunately, such an expansion Section 7 protections would upend years of generally understood and accepted labor relations practices. And unsurprisingly, employers would suffer the most, as they attempt to navigate new distinctions and the nuances of newly-protected strikes that will undoubtedly disrupt operations more than traditional strikes.  Accordingly, employers will have an important role to play in NLRB proceedings by pushing back against the OGC’s new and threatening position.

The General Counsel of the National Labor Relations Board (“NLRB”) recently issued a 30 page report summarizing its position on employer work rules (such as, most commonly, employee handbooks) and providing examples of what does and does not have a “chilling effect” on possible concerted (i.e., potential union) activity as defined by Section 7 of the National Labor Relations Act (“NLRA”). Specifically, the report provided guidance within a framework articulated by the Board’s decision in Lutheran Heritage Village-Livonia, wherein the Board found that the mere existence of a work rule – no matter how well intended – can have a chilling effect on an employee exercising his or her Section 7 rights if: (1) employees would reasonably construe the rule’s language to prohibit Section 7 activity; (2) the rule was promulgated in response to union or other Section 7 Activity; or (3) the rule was actually applied to restrict the exercise of Section 7 rights. Unsurprisingly, the vast majority of violations are found under the first prong of this test.

The report was divided into two parts, the first of which provided examples of lawful and unlawful workplace rules and is the focus of this article. Second, it examined certain handbook rules from a recently settled Unfair Labor Practice Charge against Wendy’s International LLC.

The report provided the following categories of rules with specific examples of what does and does not pass muster:

Rules Regarding Confidentiality

Employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees and other nonemployees, including union representatives. The confidentiality provisions of employee handbooks can thus violate the law if not artfully prepared. Rules prohibiting the discussion of the “terms and conditions of employment” are a no-no, while rules that prohibit the disclosure of legitimately confidential employer information are acceptable.

The following is a sampling of the confidentiality rules deemed unlawful:

  • Do not discuss customer or employee information outside of work, including phone numbers and addresses. The prohibition of disclosing “employee information” was impermissible.
  • Discuss work matters only with other employees who have a specific business reason to know or have access to such information. Do not discuss work matters in public places. This is far too broad and thus unlawful.
  • If something is not public information, you must not share it. Again, this prohibition is too broad and thus unlawful.

The following is a sampling of the confidentiality rules deemed lawful, as each did not reference employee information, were not overbroad, and did not contain language that would reasonably be construed to prohibit Section 7 communications:

  • Unauthorized disclosure of “business secrets” or other confidential information.
  • Do not disclose confidential financial data, or other nonpublic proprietary company information. Do not share confidential information regarding business partners, vendors or customers.

Rules Regarding Employee Conduct Toward the Company and Supervisors  

Employees have a Section 7 right to criticize or protest their employer’s labor policies or treatment of employees, both while at work and in the public forum. While rules banning “insubordination” are generally permissible, rules that amount to a blanket ban of “disrespectful,” “negative,” “inappropriate,” or “rude” conduct toward management might be unlawful, depending on the context. By contrast, the same language aimed at employees’ conduct toward co-workers, clients, or competitors is lawful because employers have a legitimate business interest in having employees act professionally and courteously toward non-management individuals, subject to certain caveats discussed below.

The following is a sampling of rules dealing with management deemed unlawful:

  • Be respectful to the company, other employees, customers, partners, and competitors. The inclusion of “the company” made this rule impermissible.
  • No defamatory, libelous, slanderous or discriminatory comments about the company, its customers and or competitors its employees or management. Again, the inclusion of the “management” language tipped the scales against this rule.
  • Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative. The report noted that while this rule bans insubordination, it also bans conduct that does not rise to such a level, which could include certain protected concerted activity.
  • Refrain from any action that would harm persons or property or cause damage to the company’s reputation. The report maintained that this rule (and others like it) was unlawfully broad because it could be reasonably read to require employees to refrain from criticizing the employer in public.

By contrast, the following were lawful:

  • No “rudeness or unprofessional behavior toward a customer, or anyone in contact” with the company. Again, this is acceptable because it did not mention “management” or “the company.”
  • Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers, and vendors. Here, the emphasis of the rule is the performance of the employees, as opposed to the communicative components of employment. It was thus permissible.
  • Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may overtake. This rule was acceptable because it plainly pertained to workplace investigations rather than investigations of unfair labor practices or preparations for arbitrations.

Rules Regarding Employee Conduct Toward Fellow Employees

In addition to employees’ rights to discuss their terms and conditions of employment and/or criticize their employers’ labor practices, employees also have a right to argue and debate with each other about unions, management, and the like. Thus, when an employer bans all “negative” or “inappropriate” discussions among employees, without further clarification, such rules can be reasonably read to prohibit discussions and interactions that are protected.

The following is a sampling of unlawful “employee-employee” conduct rules:

  • Don’t pick fights online. Far too broad.
  • Show proper consideration for others’ privacy rights and for topics that may be considered objectionable or inflammatory, such as politics and religion. Discussion of unionization would likely be chilled by this rule because it can be an “inflammatory” topic.
  • Do not send unwanted, offense, or inappropriate emails. This rule was too vague and overbroad.

By contrast, the following were lawful:

  • Do not make inappropriate gestures, including visual staring.
  • Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors. This simply requires that employees be respectful and cooperate with their co-workers.
  • No harassment of employees, patients, or facility visitors. Harassment is distinct from contentious communication.

Rules Regarding Employee Interaction with Third Parties

Employees have a right to communicate with news media, government agencies, or other third parties regarding the terms and conditions of their employment. Handbook rules that unreasonably restrict such communication are unlawful.

The following is a sampling of “third party communication” rules deemed unlawful:

  • Employees are not authorized to speak to any representatives of the print and/or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline. The inclusion of “company matters,” without limiting language or context, made this rule overbroad and therefore impermissible.
  • If you are contacted by any government agency, you should contact the law department immediately for assistance. This was deemed unlawful because it could be reasonably read as restricting protected communications with government agencies.
  • All inquiries from the media must be referred to the Director of Operations in the corporate office, no exceptions. This rule was plainly overbroad and unlawful.

By contrast, this rule is lawful:

  • The company strives to anticipate and manage crisis situations in order to reduce disruption to our employees and to have met and to maintain our reputation as a high-quality company. To best serve these objectives, the company will respond to the news media in a timely and professional manner only through the designated spokespersons. This rule is lawful because it specifically referred to employee contact with the media regarding non-Section 7 matters (namely crisis situations) and was also not a blanket prohibition on all contact with the media.

Rules Regarding Use of Company Logos, Copyrights, and Trademarks

Though copyright holders have a right to protect their intellectual property, company rules cannot prohibit employees’ fair protected use of them. The easiest example of this is an employee’s right to use company logos on picket signs, leaflets, etc.

The following is a sampling of rules deemed unlawful because of over-breadth:

  • Do not use Company logos, trademarks, graphics, or advertising materials in social media.
  • Company logos and trademarks may not be used without written consent.

By contrast, this rule was lawful as it simply requires employees to respect copyright laws:

  • Respect all copyright and other intellectual property laws. For [the employer’s] protection as well as your own, it is critical that you show proper respect for the laws governing copyrights, fair use of copyrighted material, owned by others, trademarks and other intellectual property, including [the employer’s] own copyrights, trademarks, and brands.

In addition to the foregoing topics, the report discussed company rules regarding photography and recording, restrictions on leaving work, and certain conflict of interest issues. While the report provides helpful clarity to these challenges, employers should note that each unfair labor practice charge is decided on its own facts, and the actions and statements of employers and supervisors in connection with the application and enforcement of a particular provision will almost always be relevant to the determination. Moreover, employers should avoid relying too heavily on the content of the report, as the guidance therein can be subject to change.