A three-member panel of the National Labor Relations Board (NLRB or Board) recently ruled that a disclaimer in a bus company’s employee handbook stating that management supported the employee’s individual right to choose whether to vote for or against union representation without influence or interference from management was insufficient to cure some overbroad rules in the handbook.First, Transit, Inc. 360 NLRB No. 72 (April 2, 2014).

The Amalgamated Transit Union sought to organize the bus mechanics at the Respondent First Transit’s Phoenix facility in February 2010. The Union already represented the Respondent’s bus drivers, fuelers, and cleaners at the facility.

Among other things, the complaint alleged that numerous provisions in the Respondent’s employee handbook were unlawful. The determinative test of legality regarding each of these allegations is “whether employees would reasonably construe the language of the challenged rule to prohibit protected Section 7 activity.”

“In its view, however, inclusion of the FOA policy in the handbook under the circumstances presented ‘does little to ensure that employees would not read otherwise overbroad rules as restricting their Section 7 rights.’”

The judge found that a rule prohibiting employees from “using Company property for activities not related to work anytime” was unlawfully overbroad. The judge held that employees would reasonably construe the words “using company property” to encompass a physical presence in nonworking areas where employees could lawfully engage in union and protected activities during nonworking time. The Board disagreed, finding that, in context, “employees would recognize that the rule’s ban on the use of company property for nonwork activities refers to theft or other misappropriation of property, and would not reasonably construe the rule as covering protected activity on the facility premises.”

Another rule prohibited “Poor work habits including loafing, wasting time, loitering, or excessive visiting.” The judge found this rule unlawfully overbroad because employees could interpret it as prohibiting protected activities during nonworktime in nonwork areas. Contrary to the judge, the Board found that employees would reasonably construe “poor work habits” to refer to a failure to perform job duties when an employee is expected to be working productively.

A third rule prohibited “[d]iscourteous or inappropriate attitude or behavior to passengers, other employees, or members of the public. Disorderly conduct during working hours.” Again overruling the judge, the Board found this rule was similar to the rule prohibiting the “inability or unwillingness to work harmoniously with other employees” struck down by the Board in 2 Sisters Food Group, Inc., 357 NLRB No. 168 (2011), which issued after the judge's decision. The Board found this rule in 2 Sisters“sufficiently imprecise that it could encompass any disagreement or conflict among employees, including those related to discussions and interactions protected by Section 7.”

The Respondent argued that the judge, in finding certain rules unlawful, erred by failing to consider those rules in the context of the handbook’s “freedom of association” (FOA) policy. The policy stated, among other things, that “during union organizing campaigns, management shall support the employee’s individual right to choose whether to vote for or against union representation without influence or interference from management.” The Respondent argued that this policy informs all of its handbook provisions and therefore precluded the Board from finding that employees would reasonably read any of the challenged work rules as unlawfully restricting their Section 7 rights.

The Board agreed that an employer’s express notice to employees advising them of their rights under the Act may, in certain circumstances, clarify the scope of an otherwise ambiguous and unlawful rule. In its view, however, inclusion of the FOA policy in the handbook under the circumstances presented “does little to ensure that employees would not read otherwise overbroad rules as restricting their Section 7 rights.” The Board reasoned first that the policy was too narrow, focusing solely on union organizational rights. An effective “safe harbor” provision of this kind, also referred to as a “savings clause,” “should adequately address the broad panoply of rights protected by Section 7.”

In addition, the Board reasoned that the policy’s placement in the handbook was “neither prominent nor proximate to the rules it purports to inform.” It noted that “The 3-page policy begins on page 20 of the 73-page handbook, but the employee personal conduct rules at issue do not begin until page 33.” It also observed that the policy “does not expressly reference those rules, and the rules do not expressly reference the policy.” Finally, because the Board found that the Respondent committed unfair labor practices that contradicted the policy, “it follows that the freedom of association policy cannot insulate the Respondent from liability. Certainly, the Respondent’s employees, once aware of these violations in response to union organizing, would not reasonably read the policy as a safeguard of their Section 7 rights.”

The First Transit case is yet another example of how carefully the new Board will parse the language of employee handbooks to determine if they violate the Act. At the same time, however, it provides some insight into how a properly drafted and prominently placed FOA policy might save an otherwise overbroad handbook rule.