Trump Campaign Ethic Rules Do Not Violate the National Labor Relations Act

By Brian D. Shekell, Charles R. Spies / Feb 15, 2018

In the political world, campaigns sometimes forget that they are businesses subject to state and federal employment laws. Driving this reality home on Tuesday, the National Labor Relations Board’s Office of General Counsel released an October 31, 2017 Advice Memorandum recommending dismissal of charges against various Donald Trump organizations. The charges alleged that the Trump organizations promulgated and maintained overbroad ethics policies in violation of Section 7 of the National Labor Relations Act.

The General Counsel’s Office’s recommended dismissal of the charges, and the Regional Director dismissed the charges. This should serve as a reminder that campaigns that hire employees should carefully draft or review ethics and personnel policies to ensure that they do not violate federal or state employment laws, including the Act. This advice applies whether the campaign staff is non-union or represented by a union.

BELOW THE FOLD

The Committee to Preserve the Religious Right to Organize filed a charge with the Board against Donald J. Trump for President, Inc., Trump for America, Inc. and the Trump Organization, Inc. In part, the charge alleged that certain ethics and personnel policies promulgated by the various Trump organizations interfered with employees’ rights under Section 7 of the Act.

Many political organizations include confidentiality and conflict of interest policies in their independent contractor, employee, and volunteer agreements, much like the provisions at issue in the charge against the various Trump organizations. For example the confidentiality provisions in the Transition Agreement included:

I will keep confidential any non-public information provided to me in the course of my duties with the transition and will use such information exclusively for purposes of the transition.

I will not use or permit to be used any non-public information provided to me in the course of my duties with the transition, in any manner, for any private gain for myself or any other party, at any time during or after the transition.

Confidentiality provisions protect political organizations’ mailing and donor lists, solicitation materials and techniques, and other methodologies that are unique to the organization. The ethic and confidentiality rules protect this type of information allowing the organizations to work with countless vendors, employees, and volunteers, without worrying that an individual will walk off with valuable information after the agreement ends.

Over the last eight years, the Board has issued a number of controversial decisions holding that employer confidentiality and ethic policies interfere with the employee’s right to discuss the terms and conditions of employment in violation of Section 8(a)(1) of the Act. If the Board thought an employee could read the employer’s policy to prohibit the employee from discussing wages, hours or terms of employment with third parties, the Board would find that the rule unlawfully interfered with the employee’s rights under the Act. Applying this analysis, the Office of General Council determined that the various Trump policies did not reference information regarding employees, wages, or conditions of employment, and employees could not read the policies as prohibiting such conduct.

On December 14 after the Advice Memorandum was written but before its release to the public, the Board issued its decision in The Boeing Company, 365 N.L.R.B. No. 154 (2017). This clarifies the analysis the Board will use when examining whether an employer policy violates Section 7 of the Act. The new standard requires the Board to weigh (1) the nature and extent of the potential impact the employer’s rule has on the employees’ rights under the Act, and (2) the employers’ legitimate justifications associated with the rule. This new standard is more employer friendly and takes into account the business justifications the employer may have for the policy. The new analysis recognizes that employers have a substantial and legitimate interest in maintaining the privacy of certain business information. While this change in analysis is welcomed, employers must still ensure the business justification for policies outweighs the impact the rule may have on employees’ rights under the Act.

The Board will apply the new analysis whether the employer is has a unionized or non-union workforce. We recommend that all employers, including political organization, have their personnel and ethic policies reviewed by legal counsel who is familiar with the NLRB’s current rulings to avoid possible future problems.

If you have questions regarding the content of this alert, please contact Charlie Spies, cspies@clarkhill.com, (202) 572-8663); Brian Shekell, bshekell@clarkhill.com; or a member of either Clark Gill’s Government and Public Affairs or Labor and Employment groups.