In January 2013, we reported on the increasing focus of the National Labor Relations Board (NLRB or the “Board”) on employer policies and rules in non-unionized workplaces. The NLRB has continued in full force, creating more and more tension between the National Labor Relations Act (NLRA or the “Act”) and employers’ legitimate interests in maintaining and enforcing workplace guidelines in a nondiscriminatory fashion.
This Employment Law Commentary focuses on the maintenance and enforcement of courtesy and civility rules.1 In these cases, the Board has taken extreme positions that increasingly ignore competing interests and obligations of employers. Among the obligations that can conflict with Section 7 in this context, employers must protect their employees from harassment, including on the basis of sex and race, by disciplining employees making harassing comments and engaging in harassing behavior and by maintaining civil workplaces that are not conducive to harassment.2 Employers also have a legitimate interest in maintaining a civil workplace simply to promote employee productivity and job satisfaction, as well as ensuring appropriate levels of customer service.
The Framework: Regulating Workplace Rules Under the NLRA
Employees have the right to engage in concerted activity under Section 7 of the NLRA.3 Concerted activity is activity undertaken for the employees’ mutual aid and protection, including, for example, discussing the terms and conditions of employment and engaging in organizing activities. Under Section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”4
Under the general framework of the Act, the National Labor Relations Board regulates employer maintenance and enforcement of generally applicable workplace rules in several ways.
First, an employer commits an unfair labor practice, under Section 8(a)(1), if it maintains a rule that would reasonably tend to chill employees in the exercise of their Section 7 rights. If it expressly restricts Section 7 activity, the rule is unlawful.5 Further, if it does not expressly restrict Section 7 activity, the rule is still unlawful if “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of
Section 7 rights.”6 In reading the rule, the Board should “refrain from reading particular phrases in isolation.”7 Similarly, the Board should not seek out “arguable ambiguity . . . through parsing the language of the rule, viewing [a] phrase . . . in isolation, and attributing to the [employer] an intent to interfere with employee rights.”8
Second, employers may not discipline employees for engaging in protected activity. In the event that “the very conduct for which employees are disciplined is itself protected concerted activity,” then the discipline violates Section 8(a)(1) regardless of the employer’s motive or a showing of animus.9 Similarly, if an employee violates a workplace rule and is disciplined, the discipline is unlawful if the employee “violated the rule by (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act.”10
Workplace Conduct: Courtesy and Professionalism
The cases that likely demonstrate the biggest gap between the single-minded ideals espoused by the Board and the practicalities of managing a workforce are the Board’s decisions in the areas of civility and professionalism. In these cases, the Board would hamstring employers’ ability to govern basic workplace conduct, like requiring courtesy toward other employees or customers, or prohibiting or punishing profanity, threats, and abusive language. The cases create friction between the Act and employers’ need
to maintain civility in the workplace—which in turn makes preventing harassment and ensuring employee satisfaction and productivity more difficult.
Drafting Courtesy Rules
The Board has invalidated a number of rules that are unquestionably implemented for the purpose of ensuring a well-managed, strife-free workplace.
Importantly, it is not relevant in these cases whether the rule at issue was implemented for an improper purpose or even whether the rule has been applied to activity that is actually protected by the Act; the only question is whether an employee would read the rule as prohibiting protected conduct. Unfortunately, the Board has concluded that the aspirational language of courtesy rules is often vague and over broad—frequently noting the lack of definitions of vague terms—and therefore would be read by employees to prohibit protected conduct, such as being critical of their pay or other conditions of work, co-workers, or their employer.
In the first of a string of cases involving courtesy, the Board invalidated a “Courtesy” policy in Karl Knauz Motors, 358 NLRB No. 164 (2012).11 Although precedent dictates that the Board read the rule as a whole, the Board here tortuously parsed this rule to find that it violated the Act.
The full policy at issue provided as follows: Courtesy: Courtesy is the responsibility of every
employee. Everyone is expected to be courteous,
polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
The majority concluded that the Courtesy rule was unlawful because, notwithstanding the title or first two sentences of the rule, “employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing Section 7 activity.”
For similar reasons, the Board has invalidated rules that prohibit employees from being discourteous, even to guests. In First Transit, Inc., the Board invalidated a bus company’s rule that prohibits “[d]iscourteous
or inappropriate attitude or behavior to passengers, other employees, or members of the public. Disorderly conduct during working hours.”12 The Board focused on the phrase relating to employees, and struck down the entire rule, finding it similar to a rule found unlawful
in a previous Board decision prohibiting the “inability or unwillingness to work harmoniously with other employees.”13
In another case brought by a former Hooters waitress, an administrative law judge (ALJ) of the NLRB invalidated rules that prohibited discourtesy to guests and an insubordination policy that applied to courtesy to guests.14 Specifically, two rules prohibited the following disrespectful conduct:
Disrespect to our guests including discussing tips, profanity or negative comments or actions.
Insubordination to a manager or lack of respect and cooperation with fellow employees or guests
The ALJ concluded that both rules were vague and over broad. The portion of the rule prohibiting the discussion of tips violated the employees’ rights to discuss wages with non-employees. The remainder of the rule (“Disrespect to our guests including . . .
profanity or negative comments or actions”) was “over broad and unqualified” in part because no examples of the prohibited conduct were included. The rule
prohibiting insubordination was likewise over broad as it did not define “insubordination,” “lack of respect,” or “cooperation.”
Similarly, the Board also recently invalidated several rules that prohibited gossip and negativity.15 The first rule prohibited “gossip,” stated that gossip “is an activity that can drain, corrupt, distract and down-shift the company’s productivity, moral, and overall satisfaction,” and defined gossip as follows:
Talking about a person’s personal life when they are not present Talking about a person’s professional life without his/her supervisor present Negative, or untrue, or disparaging comments or criticisms of another person or persons Creating, sharing, or repeating information that can injure a person’s credibility or reputation Creating, sharing, or repeating a rumor about another person
Creating, sharing or repeating a rumor that is overheard or hearsay.
The second company’s rule stated “We will not engage in or listen to negativity or gossip” and also had a
rule that stated “We will represent Hills & Dales [General Hospital] in the community in a positive and professional manner in every opportunity.”
In both cases, the Board concluded that the quoted rules were over broad and could be interpreted by reasonable employees as infringing on their right to discuss the terms and conditions of employment. In the former case, an employee was reinstated with back pay after she was terminated for, among other things, violating the rule.
In slightly better news, this May the Board has finally found a floor: Employers may, at least, prohibit employees from using “Profane or abusive language where the language is uncivil, insulting, contemptuous, vicious, or malicious.”16
Enforcing Courtesy Rules
It is not just the maintenance of courtesy rules that can get employers into trouble. If a rule is over broad and an employee is terminated for violating that rule, the Board may order reinstatement of the employee with back pay. And a few cases demonstrate that the Board is equally aggressive in cases challenging enforcement of workplace rules as in maintenance cases. These cases clearly illustrate the tension between the NLRA and other workplace laws that require a certain level of decorum be maintained in the workplace.
Even though employers can at least theoretically maintain rules prohibiting profane speech (see above), they may not be able to terminate employees who violate the rule. Repeatedly the Board has sided
with employees who use profane speech or improper gestures, when it concludes the employee was engaging in protected conduct at the time. (Remember: This Board takes a very broad view of what is protected.) Two recent decisions illustrate the issue:
First, on remand from the Second Circuit, the Board found that Starbucks unlawfully terminated an employee after he engaged in a heated dispute with his manager in which he used many expletives—in front of customers. Originally, the Board approved of the employee’s conduct, and Starbucks appealed. The
Second Circuit remanded, noting “We think the analysis of [the Board] improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.” On remand, the Board did not
take this admonishment to heart, and again sided with the employee.17
Second, the Board likewise condoned an employee’s conduct when he cursed at his supervisor, calling him a “f***ing mother f***er” and a “f***ing crook,” among other profanities.18 He also told the supervisor that if he was terminated, the supervisor “would regret it.” As a result of this meeting, the employee was terminated, and on review the Board concluded that the employer violated the Act in so doing. Although the supervisor
stated he took the statement that he “would regret it” as a physical threat, the Board did not credit that testimony, since the employee did not display any physical signs
of a threat. Ultimately, the Board concluded that the statements to the supervisor were not so egregious as to lose the protection of the Act. The dissent objected that the conduct was not protected, and noted “It is entirely reasonable, and to a great extent legally necessary,
for many employers to insist that employees engage each other with civility rather than personally directed
‘f-bombs,’ even on matters where opinions differ sharply and emotions flare.”
In another surprising case, the Board condoned cursing and language that had female employees submitting written complaints. In Fresenius USA Manufacturing, Inc., 358 NLRB No. 138 (2012),19 an employee, Kevin “Dale” Grosso, anonymously wrote “vulgar, offensive, and, in isolation, possibly threatening statements on several union newsletters left in an employee break room” with the intent of encouraging union support
in an upcoming decertification election.20 Specifically, Grosso wrote the following three notes on September 10, 2009:
“Dear Pussies, Please Read!”
“Hey cat food lovers, how’s your income doing?” “Warehouse workers, RIP.”
Female employees complained about the statements. There were 12 employees in the warehouse unit, five of whom were female. Upon learning of the statements, several female warehouse employees complained on multiple occasions about the notes, claiming they were vulgar, offensive, and threatening. In response to the complaints, the company promised to investigate the statements and, in response to their safety concerns, the manager reminded female employees that the company maintained security cameras and he himself stayed late to ensure that they left safely. Ultimately, the female employees memorialized their complaints in written statements.
The company investigated under its anti-harassment policy, requiring management to investigate and respond to complaints of harassment and, if harassment has occurred, to administer corrective action. After ultimately concluding that he wrote the statements, Fresenius terminated Grosso’s employment.
The Board concluded that in writing those statements, Grosso was engaging in protected activity as he was seeking to encourage other employees to vote for the union. Accordingly, the termination violated the Act because he was terminated for engaging in protected concerted activity, notwithstanding the fact that he also violated the company’s nondiscriminatory policy and that female employees took offense and reported the conduct in written complaints.
One Board member dissented vigorously, expressing the view—likely shared by many employers—that the majority’s approach improperly insulates employees from discipline for misconduct:
I specifically dispute their implication that greater latitude must be accorded to misconduct occurring in the course of organizational activity than for other Section 7 activity, that profanity in the course of labor relations is the presumptive and permissible norm in any workplace, that remarks by one employee to another which would be unprotected on the shop floor should be protected if made in the breakroom, that comments which coworkers reasonably view as harassing and sexually insulting are not disruptive of productivity, and that threatening speech alone cannot warrant loss of statutory protection. Taken as a whole, these pronouncements confer on employees engaged in Section 7 activity a degree of insulation from discipline for misconduct that the Act neither requires nor warrants.
Although it’s not an easy task, employers should take some time to look over their policies to determine whether their workplace rules can be revised to minimize friction with the National Labor Relations Act, while still achieving the legitimate, nondiscriminatory purposes (and sometimes obligations) in enacting and enforcing these rules in the first place. Importantly, the Board’s focus recently is on terms that it considers vague and ambiguous, so carefully crafted rules that define possibly ambiguous terms to exclude protected conduct are more likely to pass muster.
In addition, before enforcing one of these rules, take a another look at the underlying conduct to determine whether it is likely to be considered protected under the Act, even if it clearly violates the workplace rule. Unfortunately, that may not end the matter as other laws, including discrimination and harassment laws, should be considered before taking action.