Safe Bet: Your Employer Handbook Contains Illegal Rules

UPDATE, February 2018: As we feared when we published the below article in September 2017, the Trump NLRB wasted little time before overruling the Lutheran Heritage standard. On December 14, 2017, by a 3-2 majority, the Board announced that it would henceforth apply a balancing test to determine the legality of work rules which, although neutral on their face, are likely to deter employees from engaging in concerted activity. Under the test, the extent to which a rule restricts workers’ rights must be compared with the employer’s justifications for the rule, such as a need to keep secrets or deter security threats.

Given the pro-employer backgrounds of the Trump-appointed Board members, we can expect that most workplace rules, even those that clearly intimidate workers from taking part in protests or strikes, will ultimately be found lawful—at least until a new president is elected and a new Board takes office.

It sometimes looks like union and non-union employers are competing for the fattest book of employee rules. Handbooks frequently exceed 100 pages. Employees who fail to adhere to a standard—even one that is not explained—can be subject to discipline and possible discharge.

This makes it vital for unions to review National Labor Relations Board cases concerning company handbooks; the Board’s thinking on this topic is known as the Lutheran Heritage doctrine.

The Board says that broad or ambiguous employer rules, even if “facially neutral,” violate Section 8(a)(1) of the National Labor Relations Act (NLRA) if employees are likely to read them as applying during concerted activity, such as protests for improved working conditions, contract campaigns, or investigating grievances.

Many NLRB decisions are shockers, invalidating longstanding rules on disloyalty, discourtesy, confidentiality, and false statements.

WORKPLACE RECORDINGS

An example of an illegal standard is a rule barring all video or audio recordings without the employer’s knowledge and permission.

The NLRB says such a rule, even if adopted for a legitimate reason such as to protect trade secrets, discourages protected union conduct such as filming picket lines, audiotaping discriminatory or threatening statements, and taking pictures of safety violations. Enforcing or even having such a rule is an unfair labor practice even if a state law bars electronic eavesdropping.

Other handbook rules found illegal by the NLRB include bans on:

• conduct that “conflicts with company interests”
• interviews with the press
• soliciting on company premises
• using employer email systems during nonworking time
• discourtesy or disrespect toward a supervisor or fellow employee
• disclosure of employee or customer information (employees have a right to exchange salary and other data with fellow employees as part of organizing)
• hurtful or abusive social media comments about a manager or employee
• using the company logo without permission
• coercive conduct toward a fellow employee (employees have a right to argue aggressively about union matters)

FALSE STATEMENTS

Rules prohibiting false or dishonest statements can be challenged under Lutheran Heritage. NLRA precedent insulates employee assertions during union activity, whether accurate or not. Broad prohibitions on false statements, without exceptions for protected activity, are illegal because they discourage employees from giving speeches, distributing leaflets, or writing articles.

UNION STRATEGIES

Unions should review all company rules, filing charges against any that appear to be illegal. One strategy is to file charges when negotiations begin on the next contract and submit a bargaining demand that the employer expunge the illegal rules. This will allow the union to assert that any walkout it engages in is a strike over an unfair labor practice.

AN ELEPHANT IN THE ROOM

In Beaumont Hospital, a 2016 case about handbook rules, the NLRB affirmed Lutheran Heritage by a 2-1 vote. A florid dissent was issued by Philip A. Miscimarra, a right-wing Board member whom President Trump later promoted to Board chair (though Miscimarra has announced he will not seek a second term). One of Trump’s pro-employer nominees to open seats on the Board has been confirmed by the Senate and a vote on the second is pending. With an anti-union majority, the five-person Board will be able to repudiate longstanding case law. This process may take years, however, and the appeals courts may not go along. In the meantime, unions should continue to cite Lutheran Heritage when challenging work rules.

Q&A

Can we file an unfair labor practice (ULP) charge against a rule that has never been enforced?

Yes.

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Can we file a charge against a rule that was adopted several years ago with no protest from the union?

Yes. Illegally maintained rules are continuing violations. They are not subject to the six-month NLRB filing requirement.

Can an employer rewrite a rule to avoid NLRB charges?

Yes. An employer can save an overly broad rule by giving examples of forbidden conduct, such as defining “discourtesy” as the use of obscene language. An employer can also add a sentence stating that “Nothing in this rule is intended to bar or deter employees from engaging in any activity protected by the NLRA.”

Does a rule requiring employees to obey a supervisor’s orders violate the NLRA?
No. Although the NLRA allows an employee to disobey an order that conflicts with a protected right, such as the right to distribute literature during nonworking time, the NLRB has not found that rules banning insubordination are illegal. Rules against harassment, obscene language, and racial slurs have also been permitted by the NLRB.

Are NLRB decisions binding on state labor boards covering pubic employees?

No. But many state bargaining laws bar public employers from interfering with concerted activity. State labor boards often follow NLRB precedent.

An employee was fired for submitting a false statement about his work hours. The company has an overly broad rule against dishonesty, with no exceptions. If we file a ULP charge, will the NLRB order the employee reinstated?

No. The NLRB does not reinstate employees fired for violating illegal work rules unless the activity the employee was engaged in comes under Section 7 of the NLRA, i.e., concerted activity. Work-hour reports are not concerted activity.

Nonetheless, the union should file a ULP charge. At the least the employer may be ordered to remove or rewrite the rule. At most, the employer may offer to settle the charge by taking the employee back to work. Moreover, if the union takes the discharge to arbitration, it will be in a stronger position to ask the arbitrator to excuse the employee’s behavior.

Robert Schwartz is a retired union attorney and author of The Legal Rights of Union Stewards and Just Cause: A Union Guide to Winning Discipline Cases.