A relationship fraught with peril.

This article matters to you if you have a union.


On March 18, 2015, the NLRB’s General Counsel, Richard F. Griffin, Jr., issued a memorandum addressing a number of recent NLRB decisions addressing employer policies and rules in employee handbooks.

While the memorandum is written in a manner to be “helpful” to you, you must recognize that this guidance is more like a directive and creates traps for the unwary. The memorandum outlines what the Board considers to be lawful and unlawful policies and centers around the General Counsel’s interpretation of Section 7 of the National Labor Relations Act.

Keep in mind that Section 7 affords employees (both union and non-union) the right to engage in “protected, concerted” activities for mutual aid and protection of some or all of their co-workers.  If you have been following developments at the Board in recent years, you are aware that the Board has taken an increasingly expansive view of Section 7 Rights.

The new memorandum takes this approach one step further by outlining proactively the Board’s views on a variety of employer rules and policies often found in employee handbooks, including:

    • Confidentiality
    • Employee Conduct toward the Company and Supervisors
    • Employee Conduct Towards Fellow Employees
    • Employee Interaction with Third Parties
    • Use of Company Logos, Copyrights, and Trademarks
    • Restrictions on Photography and Recording
    • Restrictions on Employees from Leaving Work
    • Conflict-of-interest Rules

The good news, if you can call it that, is the NLRB’s General Counsel has provided us with examples of lawful and unlawful rules for each of these categories. In many of these instances, the line between a lawful policy (according to the NLRB) and an unlawful policy is razor thin!

As a parting gift, the General Counsel also reviewed the WENDY’S (you know, the hot and juicy hamburger place) handbook, which was part of a settlement with NLRB. If there is a lesson to be gleaned here, you can’t “have it your way” with employee handbooks. If given the opportunity, the NLRB will find issue with any policies that it deems overly restrictive of Section 7 rights and you will pay. As you have heard many times before, one of the keys to remaining union-free is to comply with the law. The NLRB is making that more and more difficult, which is why you have to know about and address this guidance as part of your handbook review.

We strongly recommend that you review the General Counsel’s memorandum and review your employee handbook, with this new guidance in mind.