Trump NLRB Continues to Loosen Reins on Employment Policies

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Lawrence E. Dubé

A Republican majority changed the National Labor Relations Board’s approach to reviewing employment policies last year, and the agency is applying the new policy to approve a variety of workplace rules.

A Blue Cross Blue Shield ban on workplace recordings and the Washington Post’s ethics policy were found to be lawful measures that didn’t interfere with the federal labor rights of employees, the NLRB’s Division of Advice concluded in a pair of memos released Sept. 14. Acting for the NLRB’s general counsel, the Advice unit provides guidance to regional offices on unfair labor practice cases.

The cases illustrate how the board’s policy shift on employment policies has taken hold in the agency and is now producing concrete results and clarity for employers attempting to formulate lawful rules and policies for their workers.

In Blue Cross Blue Shield of Tennessee, Inc., an individual alleged that the company unlawfully fired an employee for lying during an investigation. The company was investigating whether the employee had shared with other workers a voice recording of a manager, which was surreptitiously made in violation of company policy.

Associate General Counsel Jayme L. Sophir, who heads the board’s advice division, applied the NLRB’s decision in Boeing Co. Boeing overruled a longtime standard of finding apparently neutral rules unlawful if employees would “reasonably construe” them as limiting workers’ rights under the NLRA. Announcing a new standard, the board said it will consider the rights of employees as well as the legitimate interests of the employer in determining whether rules or policies are lawful.

The board said it will place rules in different categories based on their purposes and effects on employees. “Category 1,” the board said, will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.”

In Boeing, the board mentioned an employer’s no-photography rule as an example of a lawful measure. Sophir said the same reasoning applied to the insurance company’s no-recording rule. Because the rule was lawful, and there was no evidence the fired employee engaged in activity protected under the National Labor Relations Act in making or sharing a recording that violated the employer’s policy, there was no unfair labor practice, the memorandum concluded.

Newspaper Ethics Policy Lawful

In The Washington Post, the employer maintained an ethics policy that, like the company’s collective bargaining agreement with Communications Workers of America Local 32035, limited the freedom of reporters to publish or sell articles. Local 32035 also represents some Bloomberg Law employees.

The Post policy required a reporter to give the newspaper a right of first refusal on articles and not to publish them with any of the employer’s competitors. Sophir said the policy was a conflict-of-interest measure that would be considered a lawful Category 1 rule under Boeing. It was clear that employees wouldn’t consider the ethics policy as infringing on their NLRA rights, the associate general counsel wrote, because the policy implemented terms the Post and the CWA local had agreed on.

In the case before the Division of Advice, the NLRB official said the policy was lawful on its face. However, the division instructed a regional director to proceed on an unfair labor practice allegation that the Post unlawfully disciplined one reporter for publishing a Huffington Post article that described employee complaints about compensation and working condition at the Post. The NLRB’s docket reflects that the case was closed in August.

The cases are Blue Cross Blue Shield of Tenn. Inc., N.L.R.B. Div. of Advice, Case 10-CA-207362, 8/10/18 and Washington Post, N.L.R.B. Div. of Advice, Case 05-CA-206213, 7/6/18.

Request Labor & Employment on Bloomberg Law