A trio of recent cases highlights the National Labor Relations Board’s current focus on employer work rules and conduct policies. Under Section 8(a)(1) of the National Labor Relations Act, workplace rules that “explicitly restrict” an employee’s exercise of protected concerted activity are unlawful. Even workplace rules that do not explicitly limit employees’ rights may be illegal if employees reasonably would understand the rules to prohibit such activity. The NLRB’s two-member Republican minority and its three-member Democrat majority differ sharply on that point.
The NLRB’s current composition has led to some unpredictable determinations on lawful employer work rules. Indeed, on February 28, 2014, the NLRB issued two decisions on the subject with distinctly different results. In Copper River of Boiling Springs, LLC, 360 NLRB No. 60 (2014), the NLRB, by a 2-1 vote, upheld an employer’s rule prohibiting “[i]nsubordination to a manager or lack of respect and cooperation with fellow employees or guests,” including, “displaying a negative attitude that is disruptive to other staff or has a negative impact on guests.” The majority, which was comprised of the Board’s two Republican members, Philip A. Miscimarra and Harry I. Johnson, concluded that the rule banned only unprotected conduct harmful to the employer’s legitimate business concerns. The Board majority analogized the rule to one found lawful in Hyundai America Shipping Agency (357 NLRB No. 80 (2011). A dissenting opinion authored by the Board’s Chairman, Mark Pearce, a Democratic appointee, highlighted the contrasting ideologies of the NLRB’s members. According to Chairman Pearce, “an employee would reasonably interpret a ‘negative attitude’ as one that is critical of the employer, and that the rule would thereby reasonably inhibit employees from discussing controversial topics, including terms and conditions of employment.”
Chairman Pearce’s view prevailed in American Federation of Teachers New Mexico, AFL-CIO, 360 NLRB No. 59 (2014), another 2-1 decision. There, the majority, led by Chairman Pearce, found that the employer, which is a union local, violated the Act by maintaining an overbroad provision in its collective-bargaining agreement that prohibited participation in the “internal politics” of the union/employer, including “personnel matters.” The majority found that employees would reasonably understand the provision as “encompassing concerted efforts to influence [the employer’s] leadership on issues implicating terms and conditions of employment,” and therefore might refrain from engaging in protected activity. The majority also explained that the fact that the union had agreed to the provision was immaterial because the union could not negotiate away employees’ rights to engage in protected activity. This time, Member Johnson dissented, arguing employees would not reasonably view the rule as interfering with their right to raise issues relating to their own terms and conditions of employment.
Not all NLRB cases are decided along political lines, however. In California Institute of Technology Jet Propulsion Laboratory, 360 NLRB No. 63 (2014), which issued on March 12, 2014, the NLRB unanimously upheld an Administrative Law Judge’s (“ALJ”) determination that the employer violated the Act by discriminatorily reprimanding five employees who used the employer’s email system to communicate with their coworkers about a new background check requirement. The ALJ found that the employees’ emails were protected, concerted activity because the employees were discussing their working conditions, and the employees did not lose the protection of the Act merely because they used their work computers and email accounts to send the emails. Moreover, while under Register Guard employees do not currently have a Section 7 right to use company computers to engage in protected, concerted activity or union-related activity, an employer may not allow employees to use computers for some non-work activities and discriminate against employees using computers for Section 7 activities. Because the employer here had a practice of allowing use of its computers and email for a wide range of non-work purposes, such as social events, lost and found, and birth announcements, it could not lawfully discipline employees for their similar use in sending the emails at issue.
In the same case, the NLRB also unanimously upheld the employer’s ethics and business conduct policy, which required employees to “avoid any actions which could reasonably be expected to . . . discredit [the employer].” The NLRB seemingly ignored its recent decisions invalidating similar rules and relied on older precedent upholding employer policies that specifically prohibited “discredit[ing]” the employer. In so doing, the NLRB declined the ALJ’s invitation to address the apparent conflict between its most recent cases and its prior precedent.
These decisions illustrate challenges that employers face in promulgating employee attitude and conduct. NLRB decisions analyzing whether similar employer policies unlawfully abridge protected employee rights can yield markedly different results. Employers are often left guessing whether a specific employee conduct policy will withstand NLRB scrutiny. Employers should continue to tread cautiously and consult with their legal counsel to determine the best course of action to meet their specific goals.