Who Needs Miss Manners? Apparently Not Employees, NLRB Says

Employee policies remain a hot topic with the National Labor Relations Board, especially for non-unionized facilities. As but one illustration of this Board focus, the NLRB recently provided more eyebrow-raising guidance for employers trying to walk the tight line between drafting policies that will result in a positive and productive working environment and complying with Section 7 of the National Labor Relation Act’s (“NLRA”) protection of an employee’s right to engage in concerted activities for mutual aid or protection.

In a recent ruling, the Board scrutinized several employer rules involving employee performance and conduct, finding a handbook provision that prohibited employees from having a “[d]iscourteous or inappropriate attitude or behavior. . . to other employees” to be unlawfully overbroad. The Board reached this conclusion by asserting that employees could reasonably construe the policy language as prohibiting them from talking to co-workers about employment issues, thus violating Section 7 of the NLRA. Notably, the Board found that the employer’s “savings clause” – which says that no employee policy should be construed to infringe on any rights employees have under the NLRA – did not prevent the policy from being declared unlawful, in part because of the ten-page gap between the savings clause and the policy, its narrow application, and the failure of the savings clause and the policy to reference each other.

So, how can an employer reconcile all of the Board’s increasingly bewildering guidance that seems designed to give employees virtually free rein to say anything they want in any forum? Here is a quick reference for handbook policy language based on the recent NLRB decisions regarding employee conduct and performance:

NLRB Frowns on

• Prohibiting discourteous or inappropriate attitude or behavior toward other employees.
• Prohibiting the inability or unwillingness to work harmoniously with other employees.
• Prohibiting an employee from participating in outside activities that are detrimental to the company’s image or reputation.

NLRB Has Approved

• Requiring employees to maintain, in management’s sole judgment, a satisfactory attitude.
• Requiring employees to comport themselves with general notions of civility and appropriate business decorum.
• Prohibiting profane or abusive language where the language used is uncivil, insulting, contemptuous, vicious or malicious.
• Prohibiting being uncooperative with supervisors, employees, guests or otherwise engaging in conduct that does not support the Company’s goals and objectives.
• Prohibiting conduct which is or has the effect of being injurious, offensive, threatening, intimidating, coercing or interfering with other employees.
• Prohibiting poor work habits including loafing, wasting time, loitering or excessive visiting. (Key: only prohibit these activities within working hours!)
• Prohibiting off-the-job conduct which could have a negative effect on the Company’s reputation or operations.
• Prohibiting employees from exhibiting a negative attitude toward or losing interest in a work assignment.
• Prohibiting off-duty misconduct that tends to bring discredit to or reflects adversely on the Company.

While many of these approved and disapproved policies seem essentially identical, the key as to whether employees could reasonably construe them to prohibit protected activity seems to be the context in which the policy is located as much as the actual language used – meaning that the Board could find any one of its previously “approved” rules unlawful in a different application. Therefore, employers should make sure that any policies limiting communication with other employees clearly apply only to unprotected conduct.

To achieve this, employers should continually review their policies with protected, concerted activity in mind and consider if they might be interpreted as a constraint or having a chilling effect. Pay close attention to each rule in light of its proximity to other policies, handbook section titles, savings clause references and overall context. Define potentially ambiguous terms such as “Property” (i.e., equipment vs. facility premises). If there is a savings clause in the handbook, make sure to place it prominently in the section that regulates employee conduct, and cross-reference between it and potentially ambiguous rules whenever possible. The savings clause should adequately address all of the rights protected by Section 7 and not be too narrow in its focus. And as always, it is wise to consult with an attorney specializing in labor and employment law and have him or her review your policies regularly in light of recent case law.