Employers are continually reading headlines about the National Labor Relations Board (NLRB) rulings declaring common employer work rules to be overbroad and unlawful, because some employees might misinterpret such rules as applying to protected concerted or union activities. In a recent ruling, the NLRB again finds work rules prohibiting employees from engaging in "improper conduct" or "inappropriate behavior" as being overbroad and unlawful. William Beaumont Hospital, 363 NLRB No. 162, 206 LRRM 1053 (April 13, 2016). This ruling is somewhat different and interesting, however, because the dissenting NLRB member called for a new standard of evaluating the legality of employer work rules, and an issue arose in the case as to the legality of discharges of employees related to overbroad work rules.
The NLRB majority finds that even if employees have been fired for violating unlawfully broad work rules, in many circumstances the discharges themselves might nevertheless be deemed lawful. That is, discipline imposed pursuant to an unlawfully overbroad work rule violates the Act in those situations in which an employee violates the rule by: (1) engaging in protected conduct; or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act. Nevertheless, an employer will avoid liability if it can establish that the employee's conduct actually interfered with the employee's own work or that of other employees or otherwise actually interfered with the employer's operations, and that the interference, rather than the violation of the rule, was the reason for the discipline. Thus, it is not unlawful for an employer to discipline an employee pursuant to an overbroad rule in situations where the employee's conduct is not similar to conduct protected by the Act.
Dissenting NLRB member Miscimarra, the only Republican remaining on the currently 4-member NLRB, writes an extensive dissent to the finding of unlawfully overbroad rules, such as the rules that: (a) prohibit conduct that "impedes harmonious interactions and relationships;" and (b) prohibit "negative or disparaging comments about the. . . professional capability of an employee or a physician to employees, physicians, patients, or visitors." The dissenting member would find the rules noted are supported by substantial justification unrelated to the Labor Act, and have a minimal impact, if any, on the exercise of rights afforded by the Act. He would rewrite the NLRB's current doctrine which renders unlawful all employment policies, work rules and handbook provisions whenever an employee "would reasonably construe the language to prohibit Section 7 activity." He notes that in many cases the NLRB current doctrine invalidates facially neutral work rules solely because they are ambiguous in some respect. This requirement of linguistic precision stands in sharp contrast to the treatment of "just cause" provisions, benefit plans, and other types of employment documents, and fails to recognize that many ambiguities are inherent in the Labor Act itself. Instead, he believes that the NLRB has a duty to strike a proper balance between asserted business justifications and the invasion of employee rights. Thus, he believes that when evaluating a facially neutral policy, rule or handbook provision, the NLRB should evaluate the potential adverse impact of the rule on NLRA-protected activity, and the legitimate justifications an employer may have for maintaining the rule. Under this test, a facially neutral rule should be declared unlawful only if the justifications are outweighed by the adverse impact on Section 7 activity.
Editor's Note - The majority ruling is some comfort to employers to know that in many circumstances an employee may be lawfully disciplined or terminated pursuant to an unlawfully overbroad rule. However, many commentators believe the NLRB continues to err in finding common employer policies or rules to be unlawfully overbroad simply because an employee might inappropriately interpret the rules as applicable to protected union or concerted activity.