While the business community was distracted by healthcare reform and the Employee Free Choice Act, another event was moving inexorably forward – the seating of a five member National Labor Relations Board (“Board”) under Chair Wilma Liebman. The seating of the five member Board is the prerequisite to a rewrite of the National Labor Relations Act, (“Act”) (29 USC §151 et. seq.), if Chair Liebman is to be believed.
The threat of the changes occasioned by a rewrite of this Act presents employers, which place a premium on lawfully compliant personnel policies and practices, with a quandary. Should personnel policies be changed and reissued now to reflect the views expressed in Chair Liebman’s dissents over the past ten years, in anticipation of the newly appointed Board members rubber stamping her views? Or, should the status quo be maintained until the new Board’s decisions rewriting the law on employee handbooks issue, and then revise the personnel policies? While both options have much to commend them, the “wait and see” option carries a hidden and significant liability. Under Chair Liebman’s view of the law, the discharge of an employee, which is otherwise lawful, is nonetheless unlawful if the work rule on which the discharge is based is illegally overbroad. Several common work rules currently in play are discussed below.
The Board’s standard for analyzing whether workplace rules are overbroad, and thus violate Section 8(a)(1) of the Act, has traditionally been; do the rules reasonably tend to chill employees in the exercise of their Section 7 rights. (Lafayette Park Hotel, 326 NLRB 824, 825 (1998)) Wilma Liebman’s dissent in that case and her dissents to other similar cases signal a much narrower interpretation of permissible workplace rules. Liebman has stated that such rules should include examples of prohibited and protected activities and speech. Otherwise, according to her, an employee might be chilled from engaging in rights protected by Section 7. (Lutheran Heritage at *18-24.)
In Lutheran Heritage Village-Livonia, (2004 NLRB LEXIS 664 (2003)) the Board majority held a work rule which explicitly prohibited the use of abusive or profane language was lawful because such language could result in the employer facing civil liability in a verbal harassment case. Furthermore, threats could lead to violence in the workplace, which only bolstered the case for allowing similar rules. Liebman dissented. In her view, the employer could not prohibit profane and abusive speech unless examples of the prohibited speech were issued. In other words, the very words the employer wants to ban from the workplace have to disseminate to every single employee and be posted as part of the work rules.
In Lutheran Heritage, the Board found a no harassment policy which prohibited: “Harassment of other employees, supervisors and any other individuals in any way,” was lawful. Again, Liebman dissented. She first expressed concerns regarding the phrase “no harassment” in the no harassment policy. Again, Liebman stated she would have required specific examples of harassment be given in order to better define harassment. She also expressed concern over the chilling effect of such language because it could deter an employee from repeating a “vote yes” message, which is protected under Section 7, to a coworker. Ms. Liebman also vehemently disagreed with the Board’s rationale that a reasonable employee could not interpret the rule to cover protected activity and found the phrase “in any way” made the rule overbroad.
No Solicitation, No Distribution
Employers often wish to restrict (i) working time for work, (ii) employees’ personal use of employer-owned equipment such as bulletin boards, (iii) distribution of materials at work, and (iv) use of electronic mail systems. Employers may promulgate such restrictions in employee handbooks so long as the restrictions are not overbroad and do not infringe upon employees’ Section 7 rights. In fact, the Board has held that an employer may lawfully prohibit employees from using the employer’s e-mail system for solicitation and distribution of nonwork related materials because the employer has a property interest in the email (unless the employer discriminates against Section 7 activities). (Guard Publishing Company, 351 NLRB 1110 (2007))
Ms. Liebman strongly disagreed with the Board’s findings in that case and stated that the proper analysis to determine if no solicitation/no distribution rules are overbroad is to balance the employer’s interest in maintaining discipline and protecting its property interests with the employees’ rights to engage in Section 7 behavior. Liebman stated that e-mail is not a property interest akin to bulletin boards because it is not a static piece of equipment. Therefore, limiting its use in the same way an employer may limit a bulletin board’s use, is overbroad. Furthermore, Liebman stated that it is erroneous to assume that an employer has a protectable property interest in its e-mail system because the employer does not own cyberspace.
Liebman’s stance on work rules prohibiting the dissemination of “confidential” information is much the same as her position regarding abusive/profane language and harassment work rules. Again, she is quick to find the work rule overbroad, and thus, a violation of Section 8(a)(1). For example, in Double Eagle Hotel & Casino, (341 NLRB No. 17. (2004)) Liebman in dissent, stated a work rule that prohibited the communication of all confidential and sensitive information concerning the company to any nonemployee without prior approval was overbroad. (See also Lafayette Park Hotel, 326 NLRB 824 (1998)) Had the rule contained an exception for employees to discuss wages or working conditions, Liebman opined it may not have been overbroad. But, since the rule, in Liebman’s view, clearly prohibited both of those categories, it was unlawful.
Impact of Overbroad Work Rules
The issue of an overbroad work rule typically arises in one of three situations: (1) a failed union organizing campaign; (2) a union loss in a Board supervised election; or (3) the discharge of an employee for violating the rule in question. In the first situation, the employer is required to post a notice rescinding the overbroad rule. In the second, the Board sets aside the election and conducts a rerun election. In the third, the Board is likely to set aside the discharge and order reinstatement and back pay.
In Chep USA, (345 NLRB No. 5. (2005)) Ms. Liebman stated in a dissent that “where discipline is imposed pursuant to an overbroad rule, that discipline is unlawful regardless of whether the conduct could have been prohibited by a lawful rule.” Clearly, employers will need to adjust handbooks and policies to meet Ms. Liebman’s views of overbreadth, or face severe consequences.
Once the Liebman Board is seated, employers should expect their handbooks will be subjected to a more stringent standard of review. No longer should an employer assume that its rules are facially reasonable. Employers should anticipate having to explain the application of work rules in detail to avoid possible claims of overbreadth and the chilling of employees’ exercise of their Section 7 rights. Employers should consider defining key terms such as “abuse” and “profane,” as well as providing examples of prohibited conduct. It would be wise to preface the work rules with a disclaimer such as “[n]othing in this handbook shall in any way limit an employee’s right to participate in protected Section 7 activities.”