Editor’s Note: This post originally appeared on BakerHostetler’s Employment Law Spotlight blog.
The National Labor Relations Board (Board) continues its full-frontal attack on reasonable rules of conduct promulgated by employers in two recent cases issued at the beginning of April.
In Hills and Dales General Hospital, 360 NLRB No. 70 (April, 1, 2014), the Board dealt with a challenge to the facial validity of three paragraphs in the company’s Values and Standards of Behavior Policy. The three statements in question were that employees will not make “negative comments about our fellow team members,” that employees will “represent [the Company] in the community in a positive and professional manner in every opportunity” and that employees “will not engage in or listen to negativity or gossip.”
The Board indicated that the case was not one where the rules had been applied in response to or to restrict protected activity. The only question facing the Board was whether employees would reasonably construe the language under challenge to prohibit Section 7 activity.
The Board found that the use of prohibitions against “negative comments” and “negativity” are per se unlawful. While the General Counsel did not allege that that the prohibition against gossip was unlawful, and the administrative judge agreed, Chairman Pierce went out of his way to let it be known that he believed that would be unlawful as well.
What is most shocking in this decision is that the Board overruled the ALJ’s dismissal of the complaint as to a rule requiring a hospital employee to represent the employer in the community “in a positive and professional manner.” This rule was found to be unlawful and to be just as overbroad and ambiguous as the proscription against “negative comments” and “negativity.” The majority distinguished the rule from an earlier case, Tradesmen International, 338 NLRB 460, 461-62 (2002), where a rule that required employees to represent the company “in a “positive and ethical manner” was found to be lawful. “ Positive and ethical”, they concluded, likely would be construed quite differently than the phrase “positive and professional.”
In a second case, issued the next day, First Transit, Inc, 360 NLRB No. 72 (April 2, 2014), the same panel ruled on another handbook case. First Transit, a Phoenix bus company, accepted that its orally promulgated rule prohibiting employees from discussing wages with other employees and its handbook rule requiring management authorization for distribution of literature during non-work time in non-work areas were unlawful. The shocking aspect of this case is the other rules analyzed. Even though the employer ultimately won some of them, it is shocking that both the investigating region and the administrative law judge found the rule unlawful. What is a company to do? The cost of litigation of these issues was substantial.
On a 2-1 basis, with member Johnson dissenting, the Board found to be unlawful disloyalty, participating in activities that are detrimental to the company’s image or reputation, or where a conflict of interest exists, or conducting oneself during nonworking hours in a manner detrimental to the interest.
The region and ALJ found that one clause in a five-bullet point rule dealing with “stealing/theft” was unlawful as overbroad. The contested language prohibited employees from “using Company property for activities not related to work any time.” The Board overruled the judge, concluding that since the proviso was in a section of the handbook dealing with theft, the rule would be understood. But in the climate that has been fostered by this Board and the current and preceding General Counsel, a complaint was nonetheless issued and a judge deemed the rule unlawful. Similarly, the Board overruled the judge who had found a rule prohibiting “poor work habits including loafing, wasting time, loitering or excessive visiting” to be unlawful.
The ALJ had found lawful a rule prohibiting discourteous or inappropriate attitude to passengers, other employees or members of the public. She also found lawful a rule prohibiting language that was uncivil, insulting or malicious, etc. The Board reversed her as to the first rule 2-1, but surprisingly agreed 2-1 with Schiffer, joining Johnson and Chairman Pierce dissenting that the words “uncivil” and “insulting” were not so patently ambiguous as to render the rule overbroad.
The bottom line is that the Board has run amok in dealing with handbooks and rules in the workplace. An employer should review its handbook and eliminate obvious rules that will be found overbroad and unlawful. But, it is impossible to guess how a region, administrative judge or the Board will ultimately rule. Common sense has largely disappeared. And, employers should be warned that as a matter of course, many regions are asking that handbooks and rules be submitted even when there is no correlation to the investigation at hand.