NLRB Often Strikes Down Common Employer Rules

For several years now, the NLRB that governs labor and management relations in the private sector has been striking down employer rules that interfere with employee rights to form, join or associate with labor unions or to engage in activity for their mutual aid and protection – even when no union is involved.  Common rules prohibiting disrespect of supervisors, saying negative things about the company or other employees, harming the company reputation and not being courteous have been found by the NLRB to interfere with employee rights. See our previous HR Insights blog posts on the NLRB’s reaction to overly broad employer rules herehere and here.

But These Rules Are OK

But now, a panel of three Members of the NLRB has come to the opposite conclusion over rules that many would have thought would have been struck down.  In a 2 to 1 decision (the Republican Members were in the majority), these company rules were found to be okay:

  • Insubordination to a manager or lack of respect and cooperation with fellow employees or guests. This includes displaying a negative attitude that is disruptive to other staff or has a negative impact on guests. 
  • Unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party. This includes but is not limited to policies, procedures, financial information, manuals or any other information contained in Company records. 
  • Any other action or activity that the Company believes represents an actual or potential threat to the smooth operation, goodwill or profitability of its business.

In this case, an employee was fired after he used profanity disparaging the company in conversations with customers.

NLRB’s Zig-Zag Course – Caution for Employers

This holding seems to be in direct conflict with several other NLRB decisions issued by panel majorities composed of Democrat appointees.  This zig-zag course is nearly impossible to reconcile, and, given the random assignments of the make up of the panels, employers should continue to be very careful in publishing and enforcing work rules that could reasonably seen as interfering with employee rights.

Reference: Copper River of Boiling Springs (NLRB February 28, 2014).