Tuesday, May 16, 2017

When Can Employers Expect a Cessation of the NLRB's Handbook Policy Hostilities?

Pundits proclaimed that with the new administration, the National Labor Relations Board (NLRB) would dial down or pull back from its current position of DEFCON 2 with respect to employer handbook policies.  As evidenced by a decision issued by an Administrative Law Judge last week, it does not appear that a retreat is in sight.
 
In Entergy Nuclear Operations Inc. and United Government Security Officers of America, Local 25, Case Nos. 01-CA-153956, 01-CA-158947, and 01-CA-165432 (May 12, 2017), the ALJ found that the following handbook policies violated the National Labor Relations Act (NLRA), even though most of them were not actually at issue in the case:
 
1.  Integrity Code (communications): employees should not engage in communications that "include material that is inappropriate, untrue, or disparaging to outside parties or to [employer]."  According to the ALJ, the NLRB has repeatedly held that such a prohibition is unlawful because it restricts employees in the exercise of their Section 7 rights by prohibiting statements which are merely false, as distinguished from those which are maliciously so.  Bottom line: Section 7 protects employees who make false statements. 
 
2.  Information Protection Policy (disclosure of employee information):  provisions that prohibit employees from disclosing "employee information" and "employee records."  According to the ALJ, the policies "fail to clarify that they do not prohibit employees from disclosing such information as part of NLRA-protected activity."
 
3.  Information Protection Policy (use of company name and logo):  employees are prohibited from allowing any outside party to use "the name of any [employer] and any [employer] logo...without prior approval" from management officials.  The ALJ found that the employer could not articulate a "business reason" for the restrictions.
 
4.  Information Protection Policy (recordings): prohibits employees from photographing, video-recording, or audio-recording anything at the facility and/or anything that includes information that the employer deems "confidential" or an "information asset" without approval from the employer.  The ALJ found that the employer, which operates a nuclear power plant and must comply with various Nuclear Regulatory Commission regulations, could not articulate a "legitimate business need" for a blanket policy.
 
5.  Issue Resolution Policy (confidentiality):  prohibits employees, without the approval of the senior vice president of human resources, from discussing with, or disclosing to, individuals who do not have a legitimate business reason to know any information collected by the decision-making panel.  The ALJ found that a blanket policy such as this one interferes with the employees' Section 7 rights.
 
6.  Government Investigations Policy (participation):  various provisions prohibit employees from answering any questions posed by a governmental investigator without first contacting the company's legal departments, prohibit employees from providing any documents requested by a government investigator without first contacting the company's legal department, and require employees to contact the legal department before contacting a governmental agency about the company's business.  Without hesitation, the ALJ found that these provisions "unlawfully interfere with employees' independent communications with the NLRB and its representatives." 
 
Absent a clear directive from the administration or definitive action by the Board, unionized and non-unionized employers need to continue to ensure that their handbook policies comply with the myriad of restrictions imposed by the NLRB.