Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to: “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” Section 8 of the NLRA states that it shall be an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”
More and more frequently, the National Labor Relations Board (NLRB) has deemed that policies and procedures included in employee handbooks constitute “unfair labor practices,” and has expanded its interpretation of the types of actions that constitute such practices. In the past year, the NLRB has criticized and struck down handbook language including “at-will” disclaimers, social media policies, mandatory arbitration provisions, and requirements to keep internal investigations confidential.
Last month, in a move away from that trend, a panel of the Board reversed the decision of an Administrative Law Judge (ALJ), and found that two handbook policies did not explicitly restrict protected concerted activity, nor could employees reasonably construe those policies to prohibit Section 7 activity. First Transit, Inc. and Amalgamated Transit Union Local #1433, 360 N.L.R.B. No. 72 (April 2, 2014). However, it also found a work rule related to employee conduct to be in violation of Section 8.
In 2011, an ALJ initially determined that a number of company policies violated Section 8. Those policies were:
- a verbal rule prohibiting employees from discussing their wages with other employees;
- a handbook rule requiring management’s authorization for distribution of literature during non-work time in non-work areas;
- another verbal rule prohibiting employees from meeting with union representatives on the facility premises at any time; and
- a handbook provision prohibiting employees from “using Company property for activities not related to work anytime”; and
- a work rule prohibiting “[p]oor work habits, including loafing, wasting time, loitering, or excessive visiting.”
In addition, the same ALJ found that a prohibition on “[d]iscourteous or inappropriate attitude or behavior” which also precluded “[p]rofane or abusive language where the language is uncivil, insulting, contemptuous, vicious, or malicious” not to have been a violation of Section 8 of the NLRA.
The first two bullet points were not appealed and, therefore, were conceded to have been in violation of Section 8. However, exceptions to the remaining points were filed.
On review, an NLRB three-member panel (consisting of Chairman Pearce and Members Johnson and Schiffer) upheld the ALJ’s determination regarding the prohibition of meeting with union reps on facility premises (based on the fact that one of the union representatives also was a current employee, with rights to have been on the premises), but reversed the remaining designations, for the following reasons:
- The Board panel determined that, contrary to the ALJ’s interpretation of the Company policy – that the term “using Company property” encompassed a physical presence in non-work areas where employees lawfully could engage in protected activities during non-work time – the policy, which was titled “Stealing/theft,” dealt strictly with the unauthorized removal of property or funds belonging to the Company and, therefore, did not violate the NLRA.
- Contrary to the ALJ’s interpretation that the Company’s no-loitering rules could be interpreted as prohibiting protected activities during non-work time in non-work areas, the Board panel found that employees would reasonably construe the “poor work habits” cited in the rule to refer to a failure to perform job duties, also consistent with the rule’s heading: “Work rules and employee performance.” Therefore, the policy did not violate the NLRA.
- However, the Board panel reversed the ALJ’s decision related to the Company’s “Personal conduct rule, and determined that one section of the rule was in violation of Section 8. While the Board accepted the legality of the rule’s phrase prohibiting “uncivil, insulting, contemptuous, vicious, or malicious” language, it reversed that finding with respect to the rule’s initial phrase (prohibiting “discourteous or inappropriate attitude or behavior”), which it found to be “overly broad” and, therefore, capable of interpretation as precluding disagreement or conflict among employees that could fall within Section 7 of the NLRA. Therefore, the language was in violation of the NLRA.
The take-away for employees comes in the final paragraphs of the Board’s decision in the Board’s decision, in which it addresses the fact that the Company’s handbook included a “Freedom of Association” (FOA) policy, which specifically stated that management “shall support the employee’s individual right to choose whether to vote for or against union representation without influence or interference from management.”
That policy, according to the Company, should have precluded employees from believing that any of the Company’s rules or policies unlawfully restrict Section 7 rights.
However, the Board panel disagreed and, in the process, provided a bullet point list of the factors that it considered (and, presumably, will consider in the future) when determining whether a “safe harbor” FOA provision is effective:
- First, the FOA policy should be broad enough to include behavior other than union organizational rights, and should “address the broad panoply of rights protected by Section 7.”
- In addition, placement in the handbook should be prominent and/or “proximate to the rules it purports to inform.”
- If a stand-alone FOA policy is included in a handbook, it should expressly reference the rules that it effects, just as the rules should reference the FOA policy.
Following the Board panel’s suggested points can help to assure that a company’s handbook and policies cannot reasonably be construed by employees to prohibit Section 7 activity and, presumably, will be upheld as acceptable upon NLRB review.