In the whirlwind surrounding the Employee Free Choice Act (EFCA), it might be easy to ignore the basic need to ascertain that employee handbooks and policy manuals pass National Labor Relations Board (NLRB) muster in the event of union organizing or concerted activity. Nevertheless, the changing of the guard at the NLRB under the Obama Administration makes this basic exercise even more important.

Clear statements of employer policies and expectations are an essential building block of positive employee relations. In general, as long as an employer enforces its rules and policies uniformly, the NLRB will find no fault. Where the rules and policies are interpreted to infringe on employees' Section 7 rights under the National Labor Relations Act (NLRA), however, well-intentioned employers have found themselves in violation of the law.

The following is a checklist of some of the provisions in employee handbooks or employer policy manuals which should be reviewed carefully for legal compliance under the NLRA.

Technology Usage (Email)

In Register-Guard, a hotly contested 3-2 decision, the NLRB approved a company policy prohibiting employees' use of the company's computers for "non-job-related solicitations." The NLRB upheld the employer's property rights and further ruled that it is not unlawful to permit personal communications while banning non-business solicitation.

The policy language approved by the Board majority stated: "Communications systems are not to be used to solicit or proselytize for commercial ventures, religions or political causes, outside organizations, or other non-job-related solicitations. Nothing in this rule is intended to prevent communications concerning wages, hours and working conditions and is not intended to prohibit any communications allowed by law." While that is currently the controlling law, it is highly likely that the new Obama NLRB will reverse this decision. The new Chairman of the Board, Wilma Liebman, authored the stinging dissent.

Prohibitions From Disclosing Wages And Working Conditions

This prohibition is sometimes found in "confidentiality" sections of handbooks and policy manuals. Properly-defined confidential business information (i.e., cost figures, trade secrets and customer lists) can be protected from disclosure. Confidential information should be defined, however, with sufficient specificity to be clear that "wages," "wage rates" and "other terms and conditions of employment" are not included.

Prohibition Of Pins Or Decals

Wearing union insignia is considered a Section 7 right. Most rules which attempt to restrict pins or decals are invalid on their face. There are limited circumstances where uniformly enforced "no jewelry" rules designed to avoid product contamination may apply to union pins. There are also limited circumstances where a policy mandates wearing a company uniform and employees are in constant contact with customers, that the NLRB has considered it lawful to prevent union insignia or other buttons and pins. The minor exceptions are based on special business circumstances (e.g., sales floor in retail settings or immediate patient care area in a hospital) and uniformity of enforcement.

Generalized Prohibition Against "False, Vicious Or Profane Statements" Or "Abrasive Or Insulting Language"

The NLRB believes that the type of generally described prohibition above inhibits legitimate employee protests protected by Section 7. The problem is not the intent of these types of rules; it is that their ill-defined breadth covers legitimate protests as well as conduct that is not legally protected. Some suggestions to "tighten" the language might be "maliciously false statements," "sexually explicit or pornographic comments" or "sexually, racially or otherwise harassing comments." Another approach is to include a disclaimer stating that "none of these rules is intended or will be applied in a manner to limit employee complaints or discourse which is protected by law."

Prohibitions Against "Fraternizing On Or Off Duty"

This type of rule is subject to an over-broad interpretation which could restrict employees from engaging in concerted activity. If the intent of the rule is to prohibit romantic relationships and/or nepotism, the language should be sharpened to specify what is actually prohibited.

Requirement That Complaints Be Presented Internally Or Follow A Designated Chain Of Command

Employees have the right, under Section 7, to complain to each other or to an outsider, like a union organizer. There is nothing wrong with a policy or rule which suggests the normal channel for pursuing a complaint. It is the prohibition against making the complaint in a different way which is unlawful.

Rules, Policies Or Statements To Report To A Supervisor "If Anyone Puts You Under Pressure To Support A Union Or Sign A Union Card"

The NLRB interprets these types of comments as "soliciting employees to report on the union activities of others." It is permissible to advise employees that the company will put a stop to "unlawful" conduct of which it is aware.

Rules Or Policies Prohibiting "Disruption Of Any Kind During Working Hours Or On Company Property"

The NLRB would consider this rule unlawful because it prohibits protected concerted activity. Bans on destruction of company property are permissible.

The Combination Of An "Anti-Union" Position Statement And A Requirement That Employees Comply With All Company Policies

It is a stretch, but the NLRB believes that employees would interpret the combination to mean that employees must comply with the "anti-union" position statement and forego rights to engage in union activity.

Bulletin Board Policies That Require "Company Approval" Before Any Employee Posting

Essentially, the NLRB believes that every employer would discriminate against any union-related employee posting. Solutions include prohibiting all employee postings or specifying what limited postings might be allowed (e.g., employee "swap and sell" notices in a prescribed format).

More To Come

Two of the most sensitive employer rules or policies are no solicitation/no distribution rules and no access rules (for off-duty employees). These two rules will be addressed in detail in an upcoming issue of The Employment Law Authority.

Conclusion

Why is a close legal review of employee handbooks and policies warranted? In some cases, the mere existence of an unlawful policy (even if it is never enforced) can be considered objectionable conduct, resulting in a rerun of an election in which employees rejected a union. In other instances, innocent application of a rule which the NLRB concludes violates NLRA Section 7 rights can lead to an award of back pay and reinstatement. That has always been an undesirable result. With the triple back pay and $20,000 fine per violation provisions in the proposed EFCA, it is a result no employer wants to face.