NLRB General Counsel, Peter Robb, issued two memos adding guidelines to the December 2017 Boeing decision, which established a new standard for evaluating workplace rules. In the memos, Robb explains that it is lawful to:
- require employees to cooperate in workplace investigations,
- require employees to maintain a professional appearance, free of “[a]ny . . . inappropriate commercial advertising or insignia,”
- define confidential information to include business plans, internal correspondence, customer lists, and personally identifiable customer and employee information and prohibit employees from
- disclosing such information, and
- prohibit employees from communicating with the media on behalf of the employer.
In Nuance Transportation, which elicited the memos, the GC found the following to be unlawful:
- A rule prohibiting employees from sharing payroll information.
- A rule prohibiting all “non-business use” of the employer’s email system, or using email for matters that did not “promote the [employer’s] objectives” was not only unlawfully overbroad, but it conflicted with a policy that allowed limited personal use of the email.
- A rule prohibiting personal cell phone use because it prohibited employees from using their phones to communicate with each other regarding, or take photographs to document workplaces concerns, during non-work hours.
The NLRB has announced new rulemaking priorities, to include:
- access to an employer’s private property;
- standards to determine when students who perform work at a private college or university in connection with their studies are “employees” within Section 2(3) of the NLRA; and
- representation election regulations, including the Board’s current procedures for blocking an election petition after the filing of an unfair labor practices charge, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.
It is anticipated that the proposed rules will be made public in September.
It looks like giant rat inflatables may no longer be considered lawful union speech (against a neutral party), but instead classified as picketing, and thus illegal. When a Chicago IBEW local hung some banners and set up an inflatable “Corporate Fat Cat” balloon, the NLRB General Counsel pressed the board’s Chicago office to issue a complaint. In his advice memo, the GC said the banner was a “functional equivalent” of a picket sign, and by having it next to the inflatable rat, the union was picketing a neutral employer, thus violating Section 8(b)(4) of the National Labor Relations Act. The parties informally settled the matter, so the board will have to wait for another opportune time to prosecute the issue.
Early in his tenure, President Trump used an Executive Order to initiate an overhaul to the apprenticeship training system, reducing government oversight and allowing industry to set the standards and handle certification. No proposed program has yet emerged, but drafts of the plan indicate that parameters for the third-party program certifiers would largely remove the Labor Department from the certification equation. Labor Secretary, Alexander Acosta, favors excluding the building trades from the new program, siding with the unions.
In New York, an appeals court ruled a New York state law barring farm workers from unionizing and collective bargaining is a violation of the state constitution. New York Governor, Andrew Cuomo, hailed the ruling and urged the state legislature to enshrine farm workers’ right to unionize into state law. The Senate followed through, and passed the Farm Laborers Fair Labor Practices Act. The New York Farm Bureau had argued the state constitution explicitly disallowed farm workers organizing, and plans to appeal the ruling.
The overtime storm created by the Obama administration hasn’t abated yet, as both the House and Senate passed bills aimed at codifying new overtime levels as originally proposed ($51,000), rather than accept the DOL’s more reasonable target of $35,308. It is unlikely the congressional initiative will become law in the current administration.