CVS Health (31-CA-210099)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE:

September 5, 2018

TO:

Mori Rubin, Regional Director

Region 31

FROM:

Jayme L. Sophir, Associate General Counsel

Division of Advice

SUBJECT: CVS Health

Case 31-CA-210099

512-5012-0125

512-5012-0133

The Region submitted this case for advice as to whether various Employer social

media rules are unlawfully overbroad under the Board’s recent decision in Boeing

Co.1 We conclude that all of the submitted provisions are lawful under Boeing except

for the rules requiring employees to identify themselves by their real name when

discussing the Employer or their work on social media, and the rules restricting

employees from disclosing “employee information” on social media.

CVS Health (the Employer) is a retail drug store chain with over 9,600 retail

pharmacy locations throughout the United States. It maintains various social media

rules in its Code of Conduct, Colleague Handbook, and Social Media Policy. The rules

at issue are set forth at length, below.

In cases where a facially-neutral employer work rule, if reasonably interpreted,

would potentially interfere with Section 7 rights, the Board will evaluate two things:

(i) the nature and extent of the potential impact on Section 7 rights, and (ii)

legitimate business justifications associated with the requirement(s).2 The Board will

conduct this evaluation “consistent with the Board’s ‘duty to strike the proper balance

between . . . asserted business justifications and the invasion of employee rights in

light of the Act and its policy,’ focusing on the perspective of employees.”3 In so doing,

1 365 NLRB No. 154, slip op. at 2-3 (Dec. 14, 2017) (expressly overruling the

“reasonably construe” standard set forth in Lutheran Heritage Village-Livonia, 343

NLRB 646, 647 (2004)).

2 Boeing Co., 365 NLRB No. 154, slip op. at 2-3

rights in

light of the Act and its policy,’ focusing on the perspective of employees.”3 In so doing,

1 365 NLRB No. 154, slip op. at 2-3 (Dec. 14, 2017) (expressly overruling the

“reasonably construe” standard set forth in Lutheran Heritage Village-Livonia, 343

NLRB 646, 647 (2004)).

2 Boeing Co., 365 NLRB No. 154, slip op. at 2-3.

3 Id., slip op. at 3 (quoting NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34

(1967)).

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“the Board may differentiate among different types of NLRA-protected activities

(some of which might be deemed central to the Act and others more peripheral),” and

make “reasonable distinctions between or among different industries and work

settings.”4 The Board will also account for particular events that might shed light on

the purpose served by the rule or the impact of its maintenance on Section 7 rights.5

The Boeing Board also indicated that its balancing test will ultimately result in

its ability to classify the various types of employer rules into three categories, thereby

eliminating the need to conduct case-specific balancing as to certain types of rules so

as to provide employers, employees, and unions with greater certainty in the future.

The Board described the following categories:

• Category 1 will include rules that the Board designates as lawful to

maintain, either because: (i) the rule, when reasonably interpreted,

does not prohibit or interfere with the exercise of Section 7 rights and

thus no balancing of rights and justifications is required; or (ii) even

though the rule has a reasonable tendency to interfere with Section 7

rights, the potential adverse impact on those protected rights is

outweighed by employer justifications associated with the rule

ecause: (i) the rule, when reasonably interpreted,

does not prohibit or interfere with the exercise of Section 7 rights and

thus no balancing of rights and justifications is required; or (ii) even

though the rule has a reasonable tendency to interfere with Section 7

rights, the potential adverse impact on those protected rights is

outweighed by employer justifications associated with the rule. The

Board included in this category rules requiring “harmonious

relationships” in the workplace, rules requiring employees to uphold

basic standards of “civility,” and rules prohibiting cameras in the

workplace.

• Category 2 will include rules that warrant individualized scrutiny in

each case as to whether the rule, when reasonably interpreted, would

prohibit or interfere with the exercise of Section 7 rights, and if so,

whether any adverse impact on protected conduct is outweighed by

legitimate business justifications.

• Category 3 will include rules that the Board will designate as

unlawful to maintain because they would prohibit or limit Section 7

conduct, and the adverse impact on Section 7 rights is not outweighed

by justifications associated with the rule. The Board included as an

example of a Category 3 rule one that prohibits employees from

discussing wages and benefits with each other.6

4 Id., slip op. at 15.

5 Id., slip op. at 16.

6 Id., slip op. at 3-4, 15.

the adverse impact on Section 7 rights is not outweighed

by justifications associated with the rule. The Board included as an

example of a Category 3 rule one that prohibits employees from

discussing wages and benefits with each other.6

4 Id., slip op. at 15.

5 Id., slip op. at 16.

6 Id., slip op. at 3-4, 15.

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The Board specified that these categories represent the results of the new balancing

test but are not part of the test itself.7

A. CVS HEALTH CODE OF CONDUCT

1.

Consistent with the Company’s approach to interacting with the traditional news

media, only designated CVS Health employees are authorized to speak on behalf of

the Company in social media. Colleagues who choose to speak on social media about

the Company in any way must make it clear that they are a CVS Health employee,

but not speaking on behalf of the Company or as an official Company Representative.

We conclude that this rule is lawful, as the General Counsel has determined that

restrictions on who can speak on an employer’s behalf fall in Category 1 and are

facially lawful.8 Thus, such rules ordinarily will have no real impact on Section 7

rights, and employers have a significant interest in ensuring that only authorized

employees speak for the company.

2.

All CVS-branded social media accounts (using “CVS,” “CVS Health” or any CVS

business unit, department, or product name as part of the account name or URL

and/or using the CVS logo or portion of the logo in any way) must be approved in

advance

e no real impact on Section 7

rights, and employers have a significant interest in ensuring that only authorized

employees speak for the company.

2.

All CVS-branded social media accounts (using “CVS,” “CVS Health” or any CVS

business unit, department, or product name as part of the account name or URL

and/or using the CVS logo or portion of the logo in any way) must be approved in

advance.

We first conclude that the restriction on the use of the CVS logo falls in Category

1 and is facially lawful.9 Although some protected activity may fall under such a rule,

including posting pictures of picket signs or leaflets with the Employer’s logo, usually

employees will understand this type of rule as protecting the employer’s intellectual

property from commercial and other non-Section 7 related use. Even where

employees would reasonably interpret such a rule to apply to fair use of an employer’s

logo as part of protected concerted activity, there would be only a peripheral effect on

7 Id., slip op. at 4.

8 See Memorandum GC 18-04, “Guidance on Handbook Rules Post-Boeing,” at 14

(June 6, 2018); see also UPMC, 362 NLRB No. 191, slip op. at 14 n.17 (Aug. 27, 2015)

(Member Johnson, concurring in part) (recognizing that the employer has a

“legitimate interest in prohibiting non-authorized employees from acting as

representatives or spokespeople” for the employer).

9 See Memorandum GC 18-04, at 13-14.

morandum GC 18-04, “Guidance on Handbook Rules Post-Boeing,” at 14

(June 6, 2018); see also UPMC, 362 NLRB No. 191, slip op. at 14 n.17 (Aug. 27, 2015)

(Member Johnson, concurring in part) (recognizing that the employer has a

“legitimate interest in prohibiting non-authorized employees from acting as

representatives or spokespeople” for the employer).

9 See Memorandum GC 18-04, at 13-14.

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Section 7 rights, as employees may refrain from using the logo as part of their

protected concerted activity but not stop the protected concerted activity itself. By

contrast, employers have a strong interest in protecting their intellectual property,

including logos and trademarks, as that property can have significant value and

failure to police its use may result in significant financial loss.

We also conclude that, on balance, the restriction on the use of the CVS name as

part of a social media account name or URL is lawful.10 Employers have a

substantial interest in ensuring that employees do not, intentionally or

unintentionally, make statements that can be interpreted as coming from the

company. If an employee who is perceived as speaking for the company makes

unprofessional, rude, or bigoted comments, it can cause serious damage to a

company’s reputation. Worse yet, an employee speaking with apparent authority

from the company might even create unwanted contractual obligations or liabilities

for the employer. Significantly, the Employer’s rule does not restrict employees from

referencing the Employer’s name in their social media postings regarding Section 7

activity; the rule only applies to the account name or URL.11 The rule’s effect on

employee Section 7 activity is thus comparatively slight, and it is outweighed by the

Employer’s business justification.

B. CVS HEALTH COLLEAGUE HANDBOOK

1.

Distinguish personal social media and work social media. Personal

opinions should be stated as such

ir social media postings regarding Section 7

activity; the rule only applies to the account name or URL.11 The rule’s effect on

employee Section 7 activity is thus comparatively slight, and it is outweighed by the

Employer’s business justification.

B. CVS HEALTH COLLEAGUE HANDBOOK

1.

Distinguish personal social media and work social media. Personal

opinions should be stated as such. CVS Health colleagues who choose to mention or

discuss their work, CVS Health, colleagues, or CVS Health products or services in

personal social media interactions must identify themselves by their real name and,

where relevant, title or role. You must also identify that you work for CVS Health

and make clear in your postings that you are not speaking for or on behalf of CVS

Health.

We conclude that this rule’s requirement that employees identify themselves by

name if they mention the Employer or discuss their work on social media falls in

10 The General Counsel has determined that restrictions on the use of an employer’s

name, unlike restrictions on the use of an employer’s logos and trademarks, falls in

Category 2. See id. at 17.

11 Cf. Schwan’s Home Service, 364 NLRB No. 20, slip op. at 16 (June 10, 2016)

(Miscimarra concurring that rule banning publication of any material mentioning

employer’s name was unlawful, applying his William Beaumont test rather than

Lutheran Heritage).

use of an employer’s

name, unlike restrictions on the use of an employer’s logos and trademarks, falls in

Category 2. See id. at 17.

11 Cf. Schwan’s Home Service, 364 NLRB No. 20, slip op. at 16 (June 10, 2016)

(Miscimarra concurring that rule banning publication of any material mentioning

employer’s name was unlawful, applying his William Beaumont test rather than

Lutheran Heritage).

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Category 2 and, on balance, is facially unlawful. This would require employees to

self-identify whenever discussing terms and conditions of employment with one

another or with third parties such as labor organizations. The Board has recognized

that requiring employees to self-identify in order to participate in collective action

would impose a significant burden on Section 7 rights.12 And, while the Employer

has a legitimate interest in ensuring that readers know that employees’ social media

postings are not being made on its behalf, the Employer maintains other facially

lawful rules (including the last sentence of the above provision) that protect this

interest.

2.

The disclaimers outlined in the CVS Health Social Media Policy must be used on

your personal social media accounts if you are speaking about CVS Health in any

way, including re-sharing information from official CVS Health social media accounts.

We conclude that this disclaimer requirement is lawful. Our analysis is

contained below in Section C.3. of this memorandum, which addresses the disclaimer

requirement in the Social Media Policy.

3.

Protect personal and confidential information. Our Code of Conduct makes

clear the importance of protecting the privacy and security of PHI [protected health

information], PII [personally identifiable information], and employee information. It

is not permissible to disclose this information through social media or other online

communications

r

requirement in the Social Media Policy.

3.

Protect personal and confidential information. Our Code of Conduct makes

clear the importance of protecting the privacy and security of PHI [protected health

information], PII [personally identifiable information], and employee information. It

is not permissible to disclose this information through social media or other online

communications.

We conclude that the restriction on disclosing “employee information” falls in

Category 2 and is unlawful.13 “Employee information” would reasonably be read by

employees to include employee contact information and other non-confidential

employment-related information, in which case prohibiting its disclosure would

significantly restrict employees from engaging in core Section 7 activities.14 Indeed,

12 See Boch Honda, 362 NLRB No. 83, slip op. at 2 (Apr. 30, 2015) (citing Farah

Manufacturing Co., 202 NLRB 666, 675 (1973)), enforced, 826 F.3d 558 (D.C. Cir.

2016).

13 See Memorandum GC 18-04, at 17 (stating that confidentiality rules broadly

encompassing “employee information” fall in Category 2).

14 See Schwan’s Home Service, 364 NLRB No. 20, slip op. at 15 (Miscimarra

concurring that rule restricting disclosure of “information concerning . . . employees”

would affect conduct that is central to many or most types of Section 7 activity and

was unlawful, even though majority relied on Lutheran Heritage, with which

Miscimarra disagreed).

formation” fall in Category 2).

14 See Schwan’s Home Service, 364 NLRB No. 20, slip op. at 15 (Miscimarra

concurring that rule restricting disclosure of “information concerning . . . employees”

would affect conduct that is central to many or most types of Section 7 activity and

was unlawful, even though majority relied on Lutheran Heritage, with which

Miscimarra disagreed).

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“it is hard to fathom how any Section 7 activity can be conducted . . . without having

employee-related information ‘disclosed’ or ‘used’ in some manner.”15 The rule

contains no limiting context or language that makes clear that “employee

information” does not include employee contact information or terms and conditions of

employment. Thus, “employee information” is not defined anywhere else in the rule,

the Colleague Handbook, or the Code of Conduct, and there is nothing to indicate that

it only encompasses information that is legitimately confidential, such as employees’

personal medical information or private records. While the Employer has a legitimate

business interest in keeping customers’ and employees’ personal and medical

information confidential, it has no legitimate interest in preventing employees from

sharing contact information or discussing wages, working conditions, or employment

disputes. Nor has the Employer identified any business interests justifying the

aspects of the rule that interfere with employees’ Section 7 rights. Accordingly, this

rule violates Section 8(a)(1) of the Act.

4.

Do not be disrespectful or break the law: You should not post anything

discriminatory, harassing, bullying, threatening, defamatory, or unlawful. Don’t post

content, images or photos that you don’t have the right to use.

We conclude that this rule is lawful

ects of the rule that interfere with employees’ Section 7 rights. Accordingly, this

rule violates Section 8(a)(1) of the Act.

4.

Do not be disrespectful or break the law: You should not post anything

discriminatory, harassing, bullying, threatening, defamatory, or unlawful. Don’t post

content, images or photos that you don’t have the right to use.

We conclude that this rule is lawful. 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.”16 In so

holding, the Board noted that any adverse effect of such rules on Section 7 rights

would be comparatively slight because a broad range of NLRA-protected activities are

consistent with basic standards of harmony and civility.17 The Board incorporated by

reference the civility rules at issue in William Beaumont Hospital and Member

Miscimarra’s dissent arguing for their legality, in which he reasoned that the vast

majority of conduct covered by such rules does not implicate Section 7 at all.18

Although the above rule’s admonition to “not be disrespectful” applies to social media

posts, as opposed to conduct at the workplace, it is akin to a lawful civility rule. We

further conclude that the rule’s last sentence—prohibiting employees from posting

15 Id. (Miscimarra, concurring).

16 365 NLRB No. 154, slip op. at 3-4, 15.

17 Id., slip op at 4 n.15.

18 See William Beaumont Hospital, 363 NLRB No. 162, slip op. at 21-23 (Apr. 13,

2016) (incorporated by reference in Boeing Co., 365 NLRB No. 154, slip op. at 4 n.15).

ule’s last sentence—prohibiting employees from posting

15 Id. (Miscimarra, concurring).

16 365 NLRB No. 154, slip op. at 3-4, 15.

17 Id., slip op at 4 n.15.

18 See William Beaumont Hospital, 363 NLRB No. 162, slip op. at 21-23 (Apr. 13,

2016) (incorporated by reference in Boeing Co., 365 NLRB No. 154, slip op. at 4 n.15).

Case 31-CA-210099

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materials that employees “don’t have the right to use”—is lawful. Employees would

reasonably construe this to be a lawful restriction on posting Employer logos or

intellectual property, particularly when viewed in context with the rule’s first

sentence, which states “[d]o not . . . break the law,” and the second sentence’s

prohibition on “post[ing] anything . . . unlawful.”

C. CVS HEALTH SOCIAL MEDIA POLICY

The Social Media Policy—unlike the Code of Conduct and the Colleague

Handbook—contains the following savings clause on the first page:

Nothing in this policy is meant to limit your legal right to use social

media to speak about your political or religious views, lifestyle and

personal issues, working conditions, wages, or union-related topics or

activities with others inside or outside the Company, or to restrict any

other legal rights.

This policy is not intended to interfere with any rights provided by the

National Labor Relations Act.

1.

Protect personal and confidential information. Our Code of Conduct makes

clear the importance of protecting the privacy and security of protected health

information

(PHI),

personally

identifiable

information

(PII)

and

employee

information. It is not permissible to disclose this information through social media

or other online communications.

Remember, it is never appropriate to discuss or post personal

information about other colleagues, customers, patients, clients, plan

members, or partners unless we have their written consent to do so

tion

(PHI),

personally

identifiable

information

(PII)

and

employee

information. It is not permissible to disclose this information through social media

or other online communications.

Remember, it is never appropriate to discuss or post personal

information about other colleagues, customers, patients, clients, plan

members, or partners unless we have their written consent to do so. It is

never appropriate to post protected health information, Social Security

numbers, account information, or any other information that constitutes

“personal information” or protected health information. Please respect the

privacy of others when choosing what you share and post.

Do not take or share photos from non-public areas or internal meetings.

Photos taken in break rooms, stock rooms, conference rooms, and any other area that

is not open to the public should not be shared on social media for any reason.

Company confidential information, like staffing, inventory, company goals/strategies

and patient information could be compromised. Any photos of company

presentations/slides, documents, notices or computer screens of any kind are also not

allowed on any social media platforms or channels.

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We conclude that the first paragraph of this rule, like the identical provision in

the Colleague Handbook (see Section B.3. of this memorandum, above), is facially

unlawful. That determination is not changed by the Social Media Policy’s savings

clause. Although the savings clause is in some ways comprehensive, it does not cure

this particular provision, because it does not cover all kinds of “employee

information,” including employee contact information

tical provision in

the Colleague Handbook (see Section B.3. of this memorandum, above), is facially

unlawful. That determination is not changed by the Social Media Policy’s savings

clause. Although the savings clause is in some ways comprehensive, it does not cure

this particular provision, because it does not cover all kinds of “employee

information,” including employee contact information. The concluding sentence of the

savings clause, regarding “rights provided by the National Labor Relations Act,” also

is insufficient to save this paragraph of the rule because employees, who are

laypersons, do not necessarily know the full panoply of their rights under the

NLRA.19

The second paragraph, however, is lawful. Employees would not reasonably

construe the restriction on “personal information” to cover employee contact

information or other information concerning terms and conditions of employment,

particularly when considered in context with the sentence mentioning Social Security

numbers and account information as examples of “personal information.”20

The third paragraph is also lawful. Rules prohibiting photography at the

workplace are lawful Category 1 rules.21 It follows that a rule prohibiting employees

from posting such photographs on social media is lawful. We recognize that the last

sentence of the paragraph has broad language prohibiting “any photos of company . . .

documents, notices,” which likely also includes photographs taken away from the

workplace. And, read in isolation, this sentence arguably prohibits posting of Section

19 See Allied Mechanical, 349 NLRB 1077, 1077 n.1, 1084 (2007) (finding savings

clause’s general reference to protected rights did not cure rule’s otherwise overbroad

prohibition on protected activity; although “employees may understand that their

NLRA rights are unaffected, . .

ion, this sentence arguably prohibits posting of Section

19 See Allied Mechanical, 349 NLRB 1077, 1077 n.1, 1084 (2007) (finding savings

clause’s general reference to protected rights did not cure rule’s otherwise overbroad

prohibition on protected activity; although “employees may understand that their

NLRA rights are unaffected, . . . [they] may not know the fully [sic] panoply of those

rights”); Ingram Book Co., 315 NLRB 515, 516 & n.2 (1994) (finding savings clause

stating that employer will “abide by the applicable state or federal law” if its policies

conflict with such laws did not salvage overbroad no-distribution policy; “[r]ank-and-

file employees do not generally carry lawbooks to work or apply legal analysis to

company rules as do lawyers, and cannot be expected to have the expertise to examine

company rules from a legal standpoint”).

20 See Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38, slip op. at 9 (Feb.

24, 2017) (Miscimarra concurring that rule requiring employees to protect

“confidential personal employee information” was lawful because it listed as examples

“social security numbers, identification numbers, passwords, bank account

information and medical information”).

21 Boeing Co., 365 NLRB No. 154, slip op. at 5.

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7-related photographs of company documents—such as the Employer’s handbook—

that employees have the right to possess. But viewed in context with the prior

sentence listing confidential company information (staffing, inventory, company

goals/strategies, patient information), and the Social Media Policy’s savings clause,

employees would understand that this paragraph’s last sentence is focused on

legitimately confidential information, not Section 7 communications.

2.

Keep internal communications and information confidential

text with the prior

sentence listing confidential company information (staffing, inventory, company

goals/strategies, patient information), and the Social Media Policy’s savings clause,

employees would understand that this paragraph’s last sentence is focused on

legitimately confidential information, not Section 7 communications.

2.

Keep internal communications and information confidential. Internal

communications programs that CVS Health uses to provide employees with

information about the company, including town hall meetings, employee forums,

internal e-mails and memos, are designed specifically to inform and engage our

colleagues about our company. While some of the information discussed as part of

these communications may already be public, they are not designed for external

audiences and it is important that the information be kept confidential. Employees

may not take information that is provided internally and post it to internet message

boards or blog sites, nor disclose it in other public forums. Photos of internal-only

presentations, slides, designs, prototypes and/or meetings should not be shared on

social media.

We conclude that this rule’s restriction on publicly disclosing company-provided

“internal” communications and information is lawful. This rule is akin to those

restricting disclosure of “company business,” which the General Counsel has

determined falls in Category 2.22 Many of the Employer’s internal communications

programs are undoubtedly unrelated to employees’ terms and conditions of

employment. Although the rule is arguably broad enough to cover communications

that do concern such matters—the rule forbids employees from disclosing any

“information that is provided internally”—the focus of the rule is on Employer

presentations to employees, which employers are permitted to keep confidential.

Moreover, the Social Media Policy’s savings clause helps clarify that the rule does not

restrict Section 7 communications regarding working conditions

ications

that do concern such matters—the rule forbids employees from disclosing any

“information that is provided internally”—the focus of the rule is on Employer

presentations to employees, which employers are permitted to keep confidential.

Moreover, the Social Media Policy’s savings clause helps clarify that the rule does not

restrict Section 7 communications regarding working conditions. Thus, the savings

clause states that the policy does not “limit your legal right to use social media to

speak about . . . working conditions, wages, or union related topics or activities with

others inside or outside the Company.”

22 See GC Memorandum 18-04, at 17.

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We also conclude that the last sentence of the rule, concerning “[p]hotos of

internal-only presentations,” etc., is lawful because employees do not have a right

under the Act to disclose internal company documents.23

3.

Distinguish personal social media and work social media. Personal

opinions should be stated as such. CVS Health colleagues who choose to mention or

discuss their work, CVS Health, colleagues, or CVS Health products or services in

personal social media interactions must identify themselves by their real name and,

where relevant, title or role. You must also identify that you work for CVS Health

and must make clear in your postings that you are not speaking for or on behalf of

CVS Health.

The following disclaimers must be used on your personal social media accounts if you

are speaking about CVS Health in any way, including re-sharing information from

official CVS Health social media accounts:

• Twitter or other similar platforms with very restrictive word count

allowances – use one of the following options at the end of your bio. (It is

not necessary to include this information in actual posts):

o Tweets my own.

o Views my own.

o All thoughts my own

are speaking about CVS Health in any way, including re-sharing information from

official CVS Health social media accounts:

• Twitter or other similar platforms with very restrictive word count

allowances – use one of the following options at the end of your bio. (It is

not necessary to include this information in actual posts):

o Tweets my own.

o Views my own.

o All thoughts my own.

• For individual posts you may be authoring on other platforms with less

restrictive word counts, including comments on blogs and news sites – use

one of the following options, appended to the end of your post or comment:

o The opinions expressed in this post and in any corresponding

comments are the personal opinions of the original authors, not those

of CVS Health. They may not be used for advertising or product

endorsement purposes.

o The opinions expressed in this post and in any corresponding

comments are the personal opinions of the original authors, not those

of CVS Health.

23 See, e.g., Roadway Express, 271 NLRB 1238, 1239 (1984) (taking employer’s private

business records from limited-access office and giving it to union, in attempt to

enforce collective-bargaining agreement’s work-preservation clause, unprotected).

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We conclude that the rule’s requirement that employees identify themselves by

their real name is unlawful for the same reasons that the identical restriction in the

CVS Colleague Handbook is unlawful (see Section B.1. of this memorandum, above).

This determination is not changed by the Social Media Policy’s savings clause.

Although the savings clause is in some ways comprehensive, it does not mitigate the

chilling effect of the self-identification requirement.

We also find, however, that the rule’s disclaimer requirements are in support of

the Employer’s legitimate business interest in ensuring that only authorized

personnel speak on its behalf and are not unlawful

the Social Media Policy’s savings clause.

Although the savings clause is in some ways comprehensive, it does not mitigate the

chilling effect of the self-identification requirement.

We also find, however, that the rule’s disclaimer requirements are in support of

the Employer’s legitimate business interest in ensuring that only authorized

personnel speak on its behalf and are not unlawful. In particular, we note that the

requirements for Twitter and other similar platforms with restrictive word count

allowances are not burdensome—employees only need to post one of the disclaimers

at the end of their Twitter bio, not after every “tweet.” And, although the disclaimers

are in singular form, employees would not reasonably construe them as restricting

Twitter messages reflecting concerted action. The Social Media Policy’s savings

clause further bolsters this determination. Accordingly, any impact on Section 7

rights would be comparatively slight.

4.

Leave employee recommendations to the formal process. Professional

Employment recommendations, references or testimonials regarding current and

former Employees should not be made in a social media posting. These are matters to

be handled by the HR Department.

We conclude that this rule is facially lawful. Read in context, employees would

understand that this rule—which mentions professional employment

recommendations, references, etc.—was intended to protect the Employer’s legitimate

managerial interests concerning references for a current or former employee. The

rule is thus akin to rules ensuring that only authorized employees may speak on the

Employer’s behalf, and employees would not reasonably construe it to prohibit them

from writing testimonials about mismanagement that affects working conditions.

This view is further bolstered by the Social Media Policy’s savings clause.

5.

Use social media appropriately

current or former employee. The

rule is thus akin to rules ensuring that only authorized employees may speak on the

Employer’s behalf, and employees would not reasonably construe it to prohibit them

from writing testimonials about mismanagement that affects working conditions.

This view is further bolstered by the Social Media Policy’s savings clause.

5.

Use social media appropriately. Social media is not the appropriate venue for

voicing complaints about the Company or particular colleagues that could be resolved

more constructively through the appropriate channels consistent with the Company’s

commitment to maintain a diverse and safe workplace. If CVS Health colleagues

wish to use social media to voice complaints or criticisms, they must avoid posting

anything that is or could be viewed as discriminatory, harassing, threatening,

defamatory, or invasive of another individual’s privacy. Such prohibited posts may

include disparaging customers, falsely and intentionally harming someone’s

reputation, bullying co-workers, or otherwise creating a hostile work environment.

Threats of violence, discrimination and harassment will not be tolerated.

Case 31-CA-210099

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We conclude that this rule is lawful. Initially, the General Counsel has

determined that rules regarding disparagement or criticism of the employer fall in

Category 2.24 Concerted criticism of a company’s employment and compensation

practices is central to rights guaranteed by the NLRA, and a restriction on “voicing

complaints about the Company,” without any additional context, would likely cause

employees to refrain from this kind of protected concerted activity, and from the kinds

of discussions that are often the seed for protected concerted activity. Here, however,

employees would not reasonably interpret the rule in this way

is central to rights guaranteed by the NLRA, and a restriction on “voicing

complaints about the Company,” without any additional context, would likely cause

employees to refrain from this kind of protected concerted activity, and from the kinds

of discussions that are often the seed for protected concerted activity. Here, however,

employees would not reasonably interpret the rule in this way. First, the rule is

about the Employer’s commitment to maintain a safe and diverse workplace, and it

advises employees that if they have complaints about those issues, going through

official company channels is more constructive than complaining on social media.

And the second sentence of the rule makes clear that employees remain free to

complain or criticize on social media, but that such complaints should be made

civilly.25 Finally, we note that the rule’s penultimate sentence, which prohibits,

among other things, falsely and intentionally harming someone’s reputation, is

focused on knowingly false statements.

Based on the foregoing, the Region should issue complaint, absent settlement, as

to the rules requiring employees to identify themselves by their real name when

discussing the Employer or their work on social media, and the rules restricting

employees from disclosing “employee information” on social media. The Region

should dismiss, absent withdrawal, the allegations concerning the other submitted

rules.

/s/

J.L.S.

ADV.31-CA-210099.Response.CVSHealt

24 See Memorandum GC 18-04, at 17.

25 See Boeing Co., 365 NLRB No. 154, slip op. at 4 n.15; Comprehensive Healthcare

Management Services, LLC d/b/a Brighton Rehabilitation & Wellness Services, Case

06-CA-209251, Advice Memorandum dated July 3, 2018, at 5.

(b) (6)