As anyone following the goings-on at the National Labor Relations Board over the past few years knows, the Board has been aggressively fly-specking employer policies, finding seemingly innocuous and business-sensible employee conduct rules to unlawfully infringe on employees’ rights. For example, in the past year, the NLRB has issued decisions finding unlawful policies that sought to curtail employees from making negative comments about fellow employees (Hills and Dales General Hospital) and that prohibited employees from having a discourteous or inappropriate attitude towards coworkers and customers (First Transit, Inc.).
Against this backdrop, it’s hard to imagine that a policy that prohibited employees from engaging in “gossip” might pass muster before the Board, for at least two reasons. First, interpreted broadly, a prohibition on workplace gossip could cover conversations and other communications that at least conceivably could touch on topics protected by the National Labor Relations Act. Second, less than six months ago, the NLRB found an employer’s “no gossip” rule to be unlawful in Laurus Technical Institute. Nevertheless, the Board found lawful an employer’s no gossip policy in Casino San Pablo.
In that case, the employer maintained a rule that defined “unacceptable behavior” – that is, behavior that could result in disciplinary consequences to employees – to include gossiping about other employees, including supervisors and managers. Applying the well-known Lutheran Heritage Village-Livonia standard, the Board found that this rule did not specifically prohibit any protected conduct, nor was it created in response to any protected conduct. Thus, the only issue for the Board to resolve was whether the rule could be interpreted by employees to restrict their right to engage in protected communications.
A two member Board majority comprised of republican Member Harry Johnson and democrat Member Schiffer (in one of her last decisions as a Board member) concluded that gossip is “commonly defined and reasonably understood as chatty talk or rumors or reports of an intimate nature.” Applying this definition, the majority concluded that the casino’s ban of such chatter did not interfere with employee rights under Section 7 of the National Labor Relations Act. (To no great surprise, Board Chairman Pearce disagreed, saying the rule was ambiguous and therefore unlawful.) The Board majority therefore dismissed the unfair labor practice allegation alleging the rule to be unlawful. (It wasn’t all good news for the casino, however, as despite its OK of the “no gossip” rule, the Board found a number of the casino’s other rules, including rules restricting disrespectful conduct and off-duty access to the casino, to be unlawful.)
The Board in San Pablo Casino did not distinguish Laurus Technical Institute. In fact, neither the two member majority nor Chairman Pearce even mentioned the case, which is perplexing, since in Laurus Technical Institute, the NLRB affirmed the trial judge’s conclusion that a far more detailed (and therefore, presumably, clearer) policy prohibiting gossip, which included a specific definition of what constituted prohibited gossip, was unlawful. It’s therefore hard to glean any reliable guidance from San Pablo Casino as it relates to these sorts of rules. On the one hand, the case would seem to suggest that a “no gossip” policy identical to that found lawful by the majority in that case should be able to be implemented without concern. But the decision by a different set of Board members in Laurus Technical Institute suggests that even a well-defined “no gossip” policy – one far more detailed and clear than that in San Pablo Casino – violates the Act. Thus, the only concrete conclusion that can be drawn here is that the Board’s position on employer “no gossip” policies is at best uncertain. Employers therefore should exercise caution when considering implementing any policies addressing such conduct.