Another day and another National Labor Relations Board (NLRB) decision about the legality of employer rules. Once again the NLRB issued an opinion about workplace rules that could be (maybe, possibly, sort of, etc.) construed as interfering with workers exercising their federal labor law rights. As explained below, these type of decisions can transform a weak unfair labor practice charge into one that exposes the employer to liability.
Also, this NLRB decision is notable because it highlights the disagreement over the standard for assessing employer rules that do not expressly interfere with labor law rights, but could reasonably be construed as such. It further provides a well-reasoned critical analysis of that standard and for abandoning it.
Beaumont Hospital’s Unlawful Employee Rules.
This particular decision involved Metro-Detroit based William Beaumont Hospital (William Beaumont Hospital 4/13/2016). The NLRB concluded in a 2-1 decision that the hospital violated Section 8(a)(1) of the NLRA by maintaining two rules that:
- Prohibit conduct that “impedes harmonious interactions and relationships,” and
- Prohibit “negative or disparaging comments about the . . . professional capabilities of an employee or physician to employees, physicians, patients, or visitors.”
Time to Reconsider the Standard for NLRB Assessment of Workplace Rules?
The dissenting board member, Philip A. Miscimarra, reasoned that it is time to abandon the NLRB’s current legal framework for determining the legality of workplace rules. That framework comes from a case called Lutheran Village-Livonia:
More generally, I believe the time has come for the Board to abandon Lutheran Heritage Village-Livonia (Lutheran Heritage), which renders unlawful all employment policies, work rules and handbook provisions whenever any employee ‘would reasonably construe the language to prohibit Section 7 activity.’ This aspect of the Lutheran Heritage standard applies to policies, rules and handbook provisions that do not expressly restrict Section 7 activity, were not adopted in response to NLRA-protected activity, and have not been applied to restrict such activity.
In contrast, the non-dissenting member majority reasoned that “Lutheran Heritage Village is no obstacle to a hospital employer seeking to promote safe patient care by legitimately regulating employees’ on-the-job interactions.” Further, limiting board review to an employer’s application or enforcement of facially neutral rules “would leave the potential chilling effect of such rules on protected, concerted activity unaddressed.”
There is no meaningful dispute among NLRB members that maintaining specified employment rules may interfere with employee rights. And such interference will violate the National Labor Relations Act (NLRA). But how to determine between lawful and unlawful rules is another story. Whether that story will be re-written as suggest by Mr. Miscimarra remains to be seen.
In the meantime, employers and their management attorneys like us have to worry if the next unfair labor practice (ULP) charge will involve a poorly drafted workplace policy or rule that gives new life to an otherwise factually weak ULP. In fact, much of our defense of ULP charges has arisen in the context of non-union workforces where the investigation invariably expands to assessing the employer’s handbooks and workplace rules. For this reason, it is important to have your company’s HR policies and rules reviewed and revised if necessary to avoid being the next recipient of an unfair labor charge from the NLRB.
For more information about this article or about updating your company’s employee handbooks and contracts, contact employment attorney Jason Shinn. Mr. Shinn routinely represents companies charged with unfair labor practices before the NLRB.