In a memo issued during April, NLRB General Counsel Jennifer Abruzzo announced that when the NLRB seeks to rescind overbroad and thus illegal employer work rules, the NLRB will also address the effects of their enforcement, wiping away past discipline imposed under the policies. She stated that otherwise, "As a result, the chill caused by an employer's maintenance of an unlawful provision is left unremedied because of lingering effects of its enforcement being in place." Abruzzo has been relentless in increasing the enforcement power of the NLRB toward employers. She contends that an employer rule is overbroad and thus illegal, even if it does not directly limit employer union and concerted activities, as the rule only has to "chill" such protected activities because of the rule's ambiguity. The doctrine applies to employers that are union and non-union.
Editor's Note - The NLRB seems to be constantly increasing its enforcement actions over employer work rules. Even standard work rules such as "walking off the job," "confidentiality," or "harassment" if not carefully worded, may be attacked by the NLRB if such rules are viewed as overbroad and thus illegal, and the NLRB will seek to rescind prior enforcement actions under those rules. In addition, such overbroad rules can be used as a basis to issue a "card check" remedy under the NLRB's new doctrine in the Cemex decision. Employers should have experienced labor counsel review their rules and policies to avoid these repercussions.
This article is part of our May 2024 Newsletter.
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