Workplace Civility Legal Again

by Akerman LLP - HR Defense
Contact

Rules mandating workplace civility and protection of confidential business information — recently the target of the National Labor Relations Board — are lawful again. Non-union employers take note: no longer will the Board automatically find an unfair labor practice for policy, work rule and handbook provisions that employees would construe as prohibiting protected concerted activity. Based on The Boeing Company decision issued last month, the newly re-constituted Board will now seek to strike a balance between employer and employee rights. The endorsement of workplace civility rules aligns with the EEOC’s 2016 Select Task Force on Harassment recommendation encouraging the NLRB to reconsider its position and support such rules.

The Boeing Company decision represents a marked retreat from the  Board’s 2004 decision in Lutheran Heritage Village-Livonia when the NLRB signaled that it would find innocuous employer rules attempting to protect its property or business or promoting workplace civility violated the NLRA if employees would merely “reasonably construe the language” to prohibit “Section 7” activities— activities such as the right to unionize or engage in collective action, to discuss wages, terms and conditions of employment and to air and investigate their grievances.  Following Lutheran Heritage, the Board prosecuted dozens of unfair labor practice charges over  benign workplace rules asking employees to “work harmoniously,” “to conduct themselves in a positive and professional manner,” “to keep customer and employee information secure” and to “refrain from inappropriate discussions about the company.” The Board’s Obama-era General Counsel had even issued a detailed memorandum cataloging scores of decisions finding various workplace rules unlawful, even if they had never been applied to restrict employees’ rights under the NLRA and were not issued in response to union activity.

In its December 14, 2017, 3-2 decision in The Boeing Company, the new Republican majority Board reversed the decision of an Administrative Law Judge that found Boeing’s policy restricting camera-enabled devises such as cell phones on its property in violation of the NLRA. The ALJ had applied the Lutheran Heritage analysis to the no-camera rule. Under that analysis, rules would violate the NLRA if any of the following existed: (1) employees would reasonably construe the Rule to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the Rule had been applied to restrict the exercise of Section 7 rights. The ALJ had found that under the first prong of that analysis, employees would reasonably believe that the rule prohibited them from possessing cell phones that could take pictures to support bargaining demands or gather evidence for grievances. The ALJ gave no weight to Boeing’s concern that photographs could be taken that undermined its obligation to keep national security matters secret, safeguard its confidential information and trade secrets, and protect the privacy of its employees.

The Board’s decision scrapped the first prong of the Lutheran Heritage test. The Board enunciated a new standard for facially neutral rules that requires the Board to strike the proper balance between the employer’s business justification and employee rights under the NLRA.  Finally, the Board will now consider the employer’s justification for imposing rules. Past decisions invalidating rules promulgated in response to union activity or that were actually applied to restrict Section 7 rights will not be impacted by the Boeing decision. In announcing its decision, the Board delineated three categories of Rules:

  • Category 1 includes Rules that the Board designates as lawful either because, when reasonably interpreted, they do not prohibit or interfere with the exercise of Section 7 rights; or the potential impact on protected rights is outweighed by the justifications associated with the rule.  Boeing’s  no-camera requirement and rules calling for employees to abide by basic standards of civility fit in this category.
  • Category 2 includes rules that warrant individualized scrutiny as to whether the rule would prohibit or interfere with employees’ Section 7 rights and, if so whether any adverse impact on such protected rights is outweighed by legitimate justifications.
  • Category 3 includes Rules that the NLRB will designate as unlawful because they would limit Section 7 rights and the adverse impact on these rights is not outweighed by its justifications.  An example would be a rule that prohibited employees from discussing wages with each other.

Although the Boeing decision portends future unfair labor practice litigation to begin the process of pigeon-holing Rules into the categories that will or will not require the Board’s scrutiny in future cases, employers can be at ease in knowing that most rules designed to promote workplace civility and security of its property and information will fit into Category 1. Other types of rules will now require a balancing test—a balance that includes consideration of the employer’s reasons for implementing the rules.  However, rules enacted in response to union activity or applied to restrict employees from engaging in protected activity will still be subject to unfair labor practice charges.  Despite the employer-friendly decision, employers should take the opportunity to review their rules and policies to avoid being the test cases.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Akerman LLP - HR Defense | Attorney Advertising

Written by:

Akerman LLP - HR Defense
Contact
more
less

Akerman LLP - HR Defense on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.