Many employers and their attorneys believe the National Labor Relations Board (“NLRB”) has gone off the deep end. This school of thought was again reinforced with the NLRB’s June 18, 2015 Remington Lodge Hospitality decision.
In a 2-to-1 decision, the NLRB held that the Sheraton Anchorage hotel committed an unfair labor practice by maintaining (and could no longer enforce) its employee handbook conflict of interest policy. The hotel had disciplined employees who were boycotting the hotel and then entered the hotel to present a petition. The hotel disciplined the nine employees for making threats and intimidating the hotel general manager when they handed him the boycott petition. One of the hotel policies cited as a reason for the discipline was the conflict of interest policy. The NLRB did not just rule that the discipline, based in part on the policy was unlawful – but that the conflict of interest policy itself was unlawful.
The majority ruled that when read along with other overbroad policies, the hotel employees could interpret the conflict of interest policy to prohibit them from conduct the hotel may consider to be “detrimental to its image or reputation or to present a ‘conflict’ with its interests, such as informational picketing, strikes or other economic pressure.”
The dissenting NLRB member noted that conflict of interest policies are normally instituted to prevent employees from competing against the hotel, exploiting corporate information for personal gain or having a fiduciary interest that ran counter to that of the hotel. As such, the employees could not have reasonably assumed the policy would chill their rights to picket, etc. The NLRB majority position however was that employees could reasonably understand that a general conflict of interest policy extend can be interpreted to extend to prohibiting employee efforts to unionize or improve their terms or conditions of employment. As such, the policy as written was unlawful. Go figure.
With each passing decision, the NLRB has been striking down policies which employers believe are reasonable to maintain order in the workplace. However, the NLRB’s position is that policies which might possibly chill or restrict employees in the exercise of their statutory rights to unionize or to change the terms and conditions of their employment are unlawful.