NLRB Advice Memoranda, Kroger d/b/a Jay C Food Stores, National Labor Relations Board, (May 4, 2022)

The Region submitted this case for advice about several statements and rules in an employee handbook and as a potential vehicle to reevaluate Tri-Cast, inc., 274 NLRB 377 (1985) and The Boeing Company, 365 NLRB No. 154 (2017). We conclude that the statements and rules are lawful under extant Board law. The Region has not found merit to any other related charges. Therefore, since there is no violation of extant Board law and there are no related meritorious allegations, this case is not a good vehicle to reevaluate either Tri-Cast or Boeing and the Region should dismiss the charge absent withdrawal. ​          ​.

The Employer, Jay C Food Stores, maintains a Team Member Handbook. The Handbook contains a section entitled “Jay C Food Stores Policy on Unions” which includes the following: “If you are approached by anyone who asks you to sign a union authorization card, we think you should refuse to sign it. No matter what you have been told, these cards are legal documents that say that you no longer want to deal directly with Jay C, and that you want the union to deal with us on your behalf. We believe that our team members want to think, speak, and act for themselves.” The Handbook also contains a rule restricting the use of recording devices, a prohibition on discussing confidential and proprietary information on a public forum, a prohibition on disparaging the Employer's executive leadership in social media, and a statement that the Employer has a right to monitor online activity. During the relevant time period, there was no union organizing occurring at the facility and there is no allegation that any of the rules have been applied unlawfully.

Under extant law, an employer may make pre-election statements that misrepresent employees' Section 9(a) rights to deal directly with the employer after selecting union representation [1] and it will not be objectionable or considered an unlawful threat to take away an existing benefit. See e.g., Tri-Cast, inc., 274 NLRB 377 (1985). The Board rationalized this conclusion on the premise that the employer is merely explaining to employees, in layman's terms, that the relationship between the employees and the employer will be different if they select union representation. Id. at 377. The General Counsel disagrees with the Board's decision in Tri-Cast, believes it should be overruled, and that an employer should be found to have violated Section 8(a)(1) when it explicitly misrepresents an employee's right under the proviso to Section 9(a) to deal directly with their employer after selecting an exclusive bargaining representative. ​          ​

In that connection, we conclude that the Employer's statement in its Handbook about signing a union authorization card falls within the Tri-Cast line of cases and is thus lawful under current law.

We further conclude that the other four provisions at issue in the Employer's Handbook are also lawful under extant Board law under The Boeing Co, supra and its progeny. The prohibition on using recording devices to record conversations with management or coworkers absent explicit permission is lawful as a Boeing Category 1 rule. See BMW Manufacturing Co., 370 NLRB No. 56, slip op. at 4 (2020) (finding lawful rule prohibiting use of personal recording devices without prior management approval), citing Boeing Co., 365 NLRB No. 154, slip op. at 17. The prohibition on discussing confidential and proprietary information is lawful, especially considering the examples provided. See Motor City Pawn Brokers, inc., 369 NLRB No. 132, slip op. at 5 (2020) (confidentiality provision lawful because employees would reasonably understand from the examples of confidential information that only disclosure of legitimately confidential and proprietary information is prohibited); Argos Ready Mix, LLC, 369 NLRB No. 26, slip op. at 2-3 (2020) (employees would not reasonably interpret a confidentiality agreement prohibiting the disclosure of, among other things, the company's “earnings” or “employee information” as prohibiting Section 7 activity because of overall context). We conclude that under Boeing, a reasonable employee would not interpret the prohibition on disparaging the Company and executive leadership as infringing on Section 7 rights under extant law. See Motor City Pawn Brokers, 369 NLRB No. 132, slip op. at 6-7 (finding lawful rule prohibiting employees from, among other things, communicating statements “the effect of or intention of which is to cause embarrassment, disparagement, damage or injury to the reputation, business, or standing in the community of [c]ustomers, [e]mployer and/or [r]elated [e]ntities”); Medic Ambulance Service, 370 NLRB No. 65, slip op. at 5 (2021) (finding lawful rule prohibiting employees from using social media “to disparage the company, its associates, customers, vendors, business practices, patients, or other employees of the company”); BMW Manufacturing Co., 370 NLRB No. 56, slip op. at 2-3 (finding lawful rule requiring employees to “[d]emonstrate respect for the [c]ompany” and “[n]ot engage in behavior that reflects negatively on the [c]ompany”). Finally, we conclude that the reservation of the right to monitor online activity in the online communications policy is lawful on its face and in the absence of any evidence that the Employer deviated from its normal practice in response to protected activity. See Stevens Graphics, Inc., 339 NLRB 457, 461 (2003) (employer has the right to monitor bulletin boards); cf. Purple Communications, Inc., 361 NLRB 1050, 1065 (2014) (“Nor is an employer ordinarily prevented from notifying its employees… that it monitors (or reserves the right to monitor) computer and email use for legitimate management reasons and that employees may have no expectation of privacy in their use of the employer's email system.”). The General Counsel disagrees with the Board's decisions in Boeing and other cases that flowed from that decision, including BMW, Motor City Pawn, Argos and Medic. See General Counsel's brief in Stericycle, Inc., Case 04-CA-137660, et al., dated March 7, 2020. That said, while some of the aforementioned rules would be unlawful under the standard the GC urges the Board to adopt in Stericycle, we conclude they are lawful under extant law and there are no related merit allegations under current law.

Accordingly, the Region should dismiss this charge, absent withdrawal. This email closes this case in Advice. Please contact us with any questions or concerns.

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