The NLRB’s Acting General Counsel has finally recognized that employees do not read every employer policy through a Section 7 lens. In a Memorandum from the General Counsel’s Division of Advice dated February 28, 2013, the Acting GC found that Boeing Company did not interfere with or restrain Section 7 activity by maintaining an ethics policy Code of Conduct which prohibits employees from questioning the company’s honesty, morality or reputation. Instead, the Memorandum concludes that reasonable employees would understand that the company’s Ethical Guidelines are aimed at matters of business ethics, not protected concerted activity.
While recent Board decisions give lip service to the requirements that phrases not be read in isolation, and that policies are unlawful only if employees “would reasonably construe” them as prohibiting Section 7 activity, all too often the opinions read as if the analysis was simply an academic exercise for labor lawyers to decide if the language could be construed as interfering with protected rights irrespective of the context in which they are found. Refreshingly, that is not the case in the Boeing Company Memorandum.
Boeing’s Ethical Guidelines is a forty-three page statement of the company’s business ethics, and sets forth the policies and standards by which the company and its employees are expected to conduct themselves as a government contractor. In the one-page Code of Conduct preamble, the company sets forth its own expectation for conducting business with highest standard of ethics and integrity, and mandates that employees meet that standard: “Employees will not engage in conduct or activity that may raise questions as to the company’s honesty, impartiality, reputation or otherwise cause embarrassment to the company.” The preamble Code of Conduct does not contain any limiting disclaimers or clarifying examples to explain that it is not intended to interfere with or restrict Section 7 rights. Nevertheless, the Acting GC determined that employees would understand that the Code does not interfere with their rights because the “broader framework” of the forty-three page Guidelines contains examples of the type of conduct – such as bribery or insider trading – that would undermine the company’s reputation for integrity. In other words, context matters even where the context requires reading the policy as a whole, and even where there are no clarifying examples or disclaimers connected with the prohibitions at issue. We can only hope the Acting General Counsel continues to apply the rule that policy statements should not be read in isolation, and continues to recognize that employees “would reasonably” understand the context in which prohibitions are contained.