The National Labor Relations Board (NLRB) continues to challenge employer rules no matter the legitimacy of their business purpose. Last week an NLRB administrative law judge (ALJ) ruled some of Quicken Loans’ employee policies to be illegal; this week the full NLRB slapped the same label on some of the rules at William Beaumont Hospital. The judgments are the same, namely that the work rules or policies tend to discourage employees from engaging in speech or activities that are protected under the National Labor Relations Act.

In the case of William Beaumont Hospital and Jeri Antilla, 363 NLRB No.162, two nurses were discharged by the hospital for violating rules against anti-bullying and patient and employee relations. As with the Quicken Loans’ case where the ALJ allowed the discharge but focused on the employer “rulebook,” this time the NLRB unanimously upheld the employee discharges but affirmed the ALJ’s findings that the rulebook had several policies/rules that were unlawfully broad and restrictive.

Then it one-upped the ALJ by declaring illegal two additional rules that the ALJ had not found to be illegal. The NLRB found the hospital’s rule prohibiting conduct that “impedes harmonious interactions and relationships” and “negative or disparaging comments about the …professional capabilities of an employee or physician to employees, physicians, patients, or visitors” to be unlawful. Why? Because the NLRB believed this language would “unreasonably be construed to prohibit expressions of concerns over working conditions.”

The NLRB was applying a standard it had set earlier in a case called Lutheran Heritage Village. That case used the standard whereby if an employer rule would “ reasonably tend to chill employees in the exercise of their Section 7 rights” it violates Section 8 (a) (1) of the National Labor Relations Act (NRLA).

However, one NLRB Board member chose to dissent on this ruling, challenging the direction the NLRB is forcing employers down with its constant takedowns of rules that have otherwise legitimate businesses purposes. In dissenting with the majority, Board member Miscimarra, a Republican appointee, charged that the Board is challenging rules that are otherwise reasonable; that these reasonable rules against employee organizing activities must become like Harry Potter’s Lord Valdemort, “ever present but must not be identified by name.”

Specifically, Member Miscimarra stated three objections to the NLRB’s ruling: “the standard: (1) ignores legitimate employer justifications of particular rules; (2) invalidates facially neutral work rules solely because they are ambiguous; and (3) prohibits the Board from differentiating among industries or taking specific events into consideration that may justify the work rule, noting that the hospital setting should have factored into the analysis of the rules in this case.” On the path the NLRB is following, arguably all rules addressing employee conflicts of any kind could now be seen as chilling employee’s rights to engage in collective protections of their right to organize.

Miscimarra’s dissent does posit another, fairer, test instead. It recommends the NLRB look at challenged rules that might be reasonably construed to be overly restrictive and apply a balancing test “whereby employee’s Section 7 interests are weighed against the employer’s particular business justifications for the rule in question.” 

The NLRB’s decisions against many established rules/policies collectively are forcing employers to look at their old rules and employee policies and first ask whether in any way the rule or policy would prohibit an employee action engaging in communication or behavior that is protected concerted activity. “Protected concerted activity” is actions that involve the exchange of information pertaining to wages, benefits and terms and conditions of employment as well as most employee actions that are deemed to be for the purpose of  acting together  to try to improve their pay and working conditions.

Sources: Seyfarth Shaw Employer Labor Relations Blog (4/19/16); Employment Law Worldview Squire Patton Boggs 4/16/16

If your employee handbook has not been reviewed in the last 2-3 years, chances are it contains some policies that could run afoul of today’s NLRB. For more information about ASE’s employee handbook review services contact Michael Burns at (248) 223-8039 or [email protected]