As we have previously reported, the Board is aggressively pursuing unfair labor practice cases involving what used to be considered standard, accepted workplace rules and policies. The Board's position is that the policies may have a "chilling effect" on employees' exercise of their Section 7 rights. But it is nearly impossible to draft a policy that would never conceivably have any possible chilling effect on any form of Section 7 activity, given the nearly unlimited forms such activity can take. More employers, union and non-union alike, are finding this out as the NLRB and its ALJs strike down more rules on an almost weekly basis:
Hooters of Ontario Mills – rules against "Insubordination to a manager or lack of respect and cooperation with fellow employees or guests" and "disrespect to guests."
Hills and Dales General Hospital – rules against "negative comments about our fellow team members" and "engaging in or listening to negativity or gossip," and requiring that employees "represent the hospital ... in a positive and professional manner in every opportunity."
The Kroger Company of Michigan – social media policy that (1) barred the use of any Kroger intellectual property assets, including trademarks and the Kroger insignia, banner or logo on any posting without the company's permission and (2) required employees who identified themselves as Kroger employees or posted any company-related information to include specific disclaimer language indicating that the postings were the employees' own and not necessarily the positions, strategies, or opinions of the company.
What's next? How about threats and obscenity? In Plaza Auto Center, Inc., a panel of the Board by a 2-1 vote found that concerted activity by an employee making complaints to management was protected even though the employee undisputedly was discharged for calling the employer-owner a slew of "obscene and personally denigrating terms accompanied by menacing conduct and language."
It seems that nearly all workplace rules meant to reinforce workplace civility are off the table with the Board as currently constituted. As we have suggested previously, employers should be reviewing their workplace policies and rules and considering revision in light of the Board's current position.