Stephen R. McCutcheon, Jr., Attorney at Law
The National Labor Relations Board (NLRB) and its General Counsel Richard Griffin continue to revisit prior established precedents under the National Labor Relations Act (NLRA), giving rise to evolving standards that both union and non-union employers must heed. To address the problems that the Board’s policy shifts may cause for employers, General Counsel Griffin has issued a Report Concerning Employer Rules. This report provides important guidance regarding how recent NLRB opinions and policy shifts affect handbook policies and employer rules, and provides examples of specific policy language that the Board found unlawful and the legal reasoning behind the decision.
Employment handbooks and company policies are drafted to address a multitude of topics, from attendance to workplace safety and violence, but irrespective of the topic addressed they must still comply with the NLRA. The line between a permitted policy and illegal policy is not always clear. In general a policy violates the NLRA if it expressly prohibits protected concerted activity, has a chilling effect on such activity, or is implemented in a way that chills protected speech.
Whether a policy violates the NLRA should be based upon how a reasonable employee would interpret the language. However, the NLRB often finds that the simple fact that it could be construed in a way that violates the NLRB – even if it is not the most reasonable or obvious interpretation – is sufficient to find a violation of the law. For example, the NLRB has challenged rules requiring employees to have positive attitude and prohibiting abusive and bullying conduct on the grounds that the rules and their implementation could affect collective activity protected by Section 7 of the NLRA.
Employers should periodically review their handbooks and how their policies are implemented to minimize the risk of an unfair labor practice charge, especially in this climate of ever-evolving standards.