Employee Policies Under Attack: The NLRB’s Aggressive Attempt to Re-Write Your Handbook
Much has been written about the National Labor Relations Board’s (the “NLRB”) attempt to promulgate union friendly rules like the “quickie” election rule and notice posting rule. However, for most American employers, the NLRB’s drive to scrutinize long-standing work rules should be more worrisome. While the NLRB is not necessarily attempting to make “new” law, it has found new ways to apply established standards. The mischief here is that the Board has articulated interpretations of the rules that it deems to be “reasonable,” that can best be described as attenuated, and with the result that longstanding and seemingly benign work rules were found to violate the NLRA.
Seizing upon its 1998 decision in Lafayette Park Hotel, the NLRB now appears to be looking for policies to scrutinize regardless of any alleged improper application, and may well declare them unlawful even absent any evidence of unlawful enforcement. 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999) (stating “[w]here the rules are likely to have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an unfair labor practice, even absent evidence of enforcement.”). Thus, if the NLRB finds that an employee could “reasonably construe” an otherwise innocuous work rule in such a way as to limit that employee in pursuit of his or her rights under Section 7, the rule will be declared unlawful.
A review of recent decisions, demonstrates the wide net being cast by the NLRB:
• In American Red Cross Ariz. Blood Servs. Div., Case No. 28-CA-23443, an ALJ found the “at-will” provision in the employer’s employee handbook to interfere with employees’ Section 7 rights. The ALJ determined that an employee could reasonably construe the clause “I further agree that the at-will employment relationship cannot be amended modified or altered in any way” to require that the employee agree not to engage in any union organizing effort or enter any other agreement modifying the his or her at-will employment.
• In Banner Health System, 358 NLRB No. 93, the NLRB found that an agent of the employer violated the Act when conducting workplace investigations by advising complaining parties to refrain from discussing the matter with coworkers while the investigation was ongoing. The NLRB opined that an employer may lawfully advise employees to refrain from discussing an ongoing investigation when it has a legitimate business reason that outweighs the employees rights under Section 7. The NLRB rejected Banner Health’s argument that its rule served to protect the integrity of the investigation, stating that an employer must first determine whether witnesses need protection, evidence is in danger of spoliation, or there is potential for a cover-up.
Takeaways: By now, most employers have reviewed and revised social media policies in light of the attention given them by the NLRB. However, it is increasingly clear that employers should review all employment-related documents to determine whether any other policies might be deemed unlawful by the NLRB. There is little question the NLRB will scrutinize any and all employment-related rules or policies if given the chance, including handbooks and work rules certainly, but also form documents, disciplinary communications, and just about any other communication between an employer and its employees that establishes a standard of conduct. Look for handbook provisions and rules that are awkward, vague or overbroad, and anticipate the potential interpretations that may be conceived by an NLRB investigator. Problematic provisions should be reconsidered. If they are necessary, they should be revised to clearly define what is or is not prohibited, and to ensure they do not implicate protected conduct. Unfortunately, while including a disclaimer is not a bad idea, a simple clause declaring that no rule or provision is intended to nor will be enforced in a manner to limit Section 7 rights is not considered sufficient to save an “offending” provision.