NLRB Advice Memoranda, Chipotle Mexican Grill, National Labor Relations Board, (Feb 22, 2019)

This case was submitted for advice as to whether the Employer violated the Act by maintaining 1) a rule encouraging employees to “[b]e … objective” in their communications; and 2) a rule requiring employees to forward any inquiry, request for information, or subpoena from a government agency to the Employer. We conclude that the Employer's guidance about employee communications is a lawful civility rule. We further conclude that the government investigations directive violates the Act because employees would reasonably understand it to apply to requests or subpoenas for employees to participate in Board or other government agency investigations/proceedings.

FACTS

The Employer, Chipotle Mexican Grill, is an international chain of fast casual restaurants. The Employer maintains a handbook applicable to all employees nationwide that contains the following allegedly unlawful rules (emphasis added):

ETHICAL COMMUNICATIONS

Always be fair and courteous to fellow employees, customers, suppliers or people who work on behalf of Chipotle. Also keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by using our Open Door Policy than by posting complaints to a social media outlet. Avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, co-workers or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to harm someone's reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or Chipotle policy. Whether in your everyday work conversations, in your exchange of e-mail, or otherwise, your communications should be thoughtful and ethical. Think before you speak and write. Be clear and objective.

GOVERNMENT INQUIRIES/INVESTIGATIONS

If the situation ever presents itself, Chipotle will cooperate with government agencies and authorities. Any inquiry, request for information, or subpoena from a government agency or authority should be forwarded immediately to the Compliance Department, the Safety, Security and Risk Department or Chipotle's General Counsel or, in the case of tax audits, to the Chief Financial Officer.

The Region does not have any evidence concerning whether or how these rules have been enforced. [1]

ACTION

We conclude that the Employer's guidance about employee communications is a lawful civility rule. We further conclude that the government investigations directive violates the Act because employees would reasonably understand it to apply to requests or subpoenas for employees to participate in Board or other government agency investigations/proceedings, and the significant impact this would have on Section 7 rights is not outweighed by a legitimate Employer interest.

(1) Ethical Communications rule

The Board made clear in Boeing that employees may maintain work rules requiring “harmonious relationships” in the workplace and requiring employees to uphold basic standards of “civility.” [2] Here, although the rule's admonition to “be … objective” is not a typical civility rule and could theoretically be read to restrict some protected, subjective speech, the entire rule in context is best understood as the sort of civility rule the Board has found lawful under Boeing. The rule as a whole is primarily focused on the manner of prohibited employee speech, rather than the content of prohibited speech. Thus, the instruction to “be … objective” appears in a paragraph that encourages employees to ensure their communications are “fair and courteous,” “thoughtful and ethical,” and do not constitute unlawful harassment, bullying, or defamation. The portion of the rule prohibiting “disparagement” of customers, coworkers and suppliers is in part a content restriction. But that restriction is clearly lawful with regard to customers and suppliers and, with regard to coworkers, there is a distinction between rules restricting what employees can say about their coworkers (i.e., disparaging other employees), which have little to no impact on Section 7 activity, and those restricting what employees can say about their employer (i.e., disparaging the owners). [3] This rule clearly is intended to restrict only the former. Finally, although the second sentence of the rule references “work related complaints,” which would ordinarily encompass Section 7 activities, the rule in fact acknowledges that such complaints may be made, and merely suggests that direct communications with co-workers and use of the Employer's Open Door policy are the methods most likely to achieve results. Therefore, considering the entire rule in context, employees would not reasonably interpret the “be objective” provision as preventing protected concerted activity.

In contrast to the minimal impact that these types of civility rules have on Section 7 rights, employers have significant business interests in maintaining such rules. These interests include an employer's legal responsibility to maintain a workplace free of unlawful harassment, its substantial interest in preventing violence, and its interest in avoiding unnecessary conflict or a toxic work environment that could interfere with productivity and other legitimate business goals. [4] Here, the Employer's legitimate interests in civility and harmonious interactions are apparent from the text of the rule. The Employer is not seeking to prevent employees from complaining about or criticizing their terms and conditions of employment; rather, the Employer is only requiring employees to be civil when they engage in any kind of communication. Thus, this provision is a lawful civility rule that belongs in Category 1.

(2) Government Inquiries/Investigations rule

We further conclude, however, that the Employer's Government Inquiries/Investigations rule is a Category 3 rule under Boeing because on its face it restricts employees from cooperating in Board investigations. Employees have a Section 7 right to cooperate in Board investigations or to concertedly participate in investigations by other regulatory or law enforcement agencies. [5] Employees would reasonably conclude that this rule prohibits them from providing evidence or otherwise cooperating in an investigation without first notifying the employer. The potential impact on Section 7 rights is significant because requiring employees to identify themselves to the employer before participating in an investigation puts employees at risk of intimidation and coercion. [6]

The Employer asserts that the rule only applies to inquiries addressed to it, rather than to inquiries made to individual employees, and further argues that it needs the rule to ensure that it is aware of charges, complaints, and government inquiries directed to it. [7] But despite the Employer's claim that the rule does not apply to inquiries or subpoenas directed to individual employees, the rule makes no such distinction on its face. Employees would likely understand the rule to apply to any request or inquiry from a regulatory or law-enforcement agency, including the Board. Thus, the impact on Section 7 rights is significant, while the Employer could easily accommodate its legitimate business interests with a more narrowly drawn rule. [8]

Accordingly, the Region should issue a complaint, absent settlement, alleging that the Government Inquiries/Investigations rule violates Section 8(a)(1), and should dismiss, absent withdrawal, the allegation regarding the Ethical Communications rule. [9]

/s/

J.L.S.

ADV.28-CA-229134.Response.Chipotle.​     ​