Seyfarth synopsis: The Board majority holds firm to its standard for evaluating employer work rules despite Member Miscimarra’s vigorous dissent advocating for a new, clearer standard that takes into account an employer’s legitimate business justifications.

Last Wednesday, a split Board panel (Hirozawa, McFerran) held in William Beaumont Hospital and Jeri Antilla, 363 NLRB No. 162,  that several work rules promulgated by a Michigan hospital violated the National Labor Relations Act.  The Board’s analysis of the hospital’s work rules arose out of a dispute regarding whether the hospital acted lawfully in firing two nurses for bullying behavior following an investigation into the death of a newborn at the hospital.  The Board unanimously upheld the Administrative Law Judge’s finding that the terminations were lawful, but Member Miscimarra, in a scathing partial dissent, disagreed with the Board panel’s finding that certain work rules were unlawful. He called for the Board to adopt a new standard that would allow the Board to consider the degree of adverse impact a given rule might have on protected activity and the legitimate justifications an employer may have for maintaining such a rule.

The Board panel, in affirming the administrative law judge’s finding that several of the rules violated the Act, reached even farther–declaring two additional rules to be unlawful under the Board’s Lutheran Heritage standard.  Specifically, the Board panel found the hospital’s language prohibiting conduct that “impedes harmonious interactions and relationships” and “negative or disparaging comments about the…professional capabilities of an employee or physician to employees, physicians, patients, or visitors” to be unlawful because such language “would reasonably be construed to prohibit expressions of concerns over working conditions.”

In his dissent, Member Miscimarra called for the Board to abandon its Lutheran Heritage standard, under which he claimed that “reasonable work requirements have become like Lord Voldemort in Harry Potter: they are ever-present but must not be identified by name.”  In doing so, Member Miscimarra identified numerous defects with the Lutheran Heritage “reasonably construe” standard, including that the standard: (1) ignores legitimate employer justifications of particular rules; (2) invalidates facially neutral work rules solely because they are ambiguous;  and (3) prohibits the Board from differentiating among industries or taking specific events into consideration that may justify the work rule, noting that the hospital setting should have factored into the analysis of the rules in this case.  Member Miscimarra commented that the standard has resulted in extensive confusion and litigation, arguing that the application of the standard does not permit one to understand the difference between many “lawful” and “unlawful” rules.    Member Miscimarra noted that the Board’s standard stems from a misguided belief that unless employers correctly anticipate and carve out every possible overlap with NLRA coverage, employees are best served by not having employment policies, rules, and handbooks, claiming that “in this respect, Lutheran Heritage requires perfection that literally has become the enemy of the good.”

Employer Takeaways

Although Member Miscimarra’s dissent may offer some solace to employers frustrated by the Board’s recent rulings in the context of employer policies and work rules, unfortunately, the Board majority has chosen not to pursue a clearer standard for evaluating employment policies, once again leaving employers seeking guidance as to what constitutes a lawful work rule with confusion instead of answers. While the Board’s intense focus on workplace rules lingers, employers should consult their labor lawyers to ensure their work rules can withstand the Board’s scrutiny and to determine whether such narrowly-tailored lawful rules actually further the employer’s legitimate business interests.