The National Labor Relations Board (the “Board”) recently refined its test to determine whether employment rules violate Section 8(a)(1) of the National Labor Relations Act (the “Act”) in The Boeing Company, 365 NLRB No. 154 (2017), but pitfalls remain for employers who seek to curb discourteous, disrespectful, or disloyal conduct in the workplace via employment rules.
The Boeing Company and Whether Employment Rules Chill Protected Activity
Prior to 2017, the Board used one of three tests to determine whether an employment rule or handbook provision chilled employees’ right to discuss wages, hours, and other terms and conditions of employment: 1) whether employees would reasonably construe the rule to prohibit Section 7 activity; 2) whether the rule was made in response to union activity; or 3) whether the rule was applied to restrict the exercise of Section 7 rights. The Board overruled the first “reasonableness test” in The Boeing Company, finding that the test was fundamentally flawed because it failed to account for employers’ legitimate justifications behind their rules, and essentially required employers to anticipate and carve out from their rules every possible overlap with protected activities under the Act.
To that end, the new test under Boeing requires the Board to first evaluate whether an employment rule explicitly restricts employees’ Section 7 rights and, if not, then the Board must balance 1) the rule’s potential impact on protected concerted activity, and 2) the employer’s legitimate business justifications for maintaining the rule.
Tinley Park Hotel and Convention Center, LLC
On January 9, 2019, the Board issued its decision in Tinley Park Hotel and Convention Center, LLC (“Tinley Park”), Case No. 13-CA-141609, upholding the administrative law judge’s (“ALJ”) determination that certain handbook rules which attempted to regulate employee behavior characterized as discourteous, disrespectful, disloyal, and/or disruptive were illegal under the Act.
However, the Board recognized in a footnote that the ALJ had applied the “reasonableness” test used prior to The Boeing Company decision when making his findings. Nonetheless, the Board noted that since the respondent employer did not file exceptions to the ALJ’s rulings on the illegality of the handbook provisions at issue, it adopted the ALJ’s findings without determining whether the judge’s conclusions would have satisfied the newer Boeing test. While the Board declined to analyze the handbook rules under the new test, recent Board decisions and guidance from the Board’s General Counsel provide some clarification as to how Tinley Park may have resulted if the Board had applied the Boeing standard.
Employee “Disloyalty” Prohibitions
The first rule at issue in Tinley Park prohibited employee disloyalty, including by disparaging the employer’s food, beverages, or services by making false or malicious statements. Using the pre-Boeing reasonableness test, ALJ found that the rule violated Section 8(a)(1) of the act because it prohibited employee statements about the employer’s goods and services that were merely false, as opposed to both false and malicious (which are not protected).
It is uncertain whether, under Boeing, this rule would likewise be held to be found unlawful. Guidance from the Board’s General Counsel has clarified that employers should not be required to distinguish between false statements and malicious false statements in their rules, and that statements prohibiting employee misrepresentation of the employer’s goods and services are likely lawful. However, the broad prohibition against “disloyalty” generally in the Tinley Park rule presents concerns, as even under Boeing, the Board has considered such prohibitions as likely to chill employee rights under the Act. Typically, “disloyalty” provisions are aimed towards preventing employee conflicts of interest with employers, but a prohibition against all “disloyal” conduct could encompass protected activity without sufficient employer justifications for the rule.
“Discourteous and Disrespectful Treatment” Prohibitions
Another rule found unlawful by the ALJ and the Board in Tinley Park prohibited discourteous or disrespectful treatment of guests, visitors, supervisors, or fellow associates. The ALJ found the phrase “discourteous or disrespectful treatment” ambiguous, and likely to include protected conduct, such as group protests to management concerning working conditions.
Under Boeing and the General Counsel’s recent guidance, this rule would likely be lawful as a rule simply requiring employees to abide by basic standards of civility. In other words, while an employee is free to criticize other employees or supervisors under the Act, “civility” rules like the rule above simply impact an employee’s “peripheral” right under Section 7 to criticize other employees or supervisors in a demeaning or inappropriate manner. However, further decisions from the Board under Boeing are necessary to define the parameters of an employer’s rule prohibiting discourteous or disrespectful treatment of a fellow employee or supervisor (as stated in Tinley Park).
“Catch-All” Prohibitions Against Disruptive Behavior
The last rule regarding employee “manners” discussed in Tinley Park was the employer’s “catch-all” provision, which prohibited any other conduct that the company believed has created or may lead to the creation of a situation that may disrupt or interfere with the amicable, profitable, and safe operation of the company. The ALJ concluded that this rule was unlawful as encompassing a multitude of protected activities, including working condition protests, lawful solicitation and distribution activities, or publicizing labor disputes to the media.
Even under Boeing, it is possible that the Board might find this provision unlawful but, again, the law is unclear. Prohibitions against disruptive behavior are typically permitted under Boeing when “disruptive behavior” means behavior such as roughhousing or other obviously dangerous conduct in the workplace. However, a rule generally prohibiting disruptive behavior could prohibit protected activities which are, by their nature, intended to be disruptive—such as lawful pickets, protests, strikes, petitioning management with grievances, etc. Accordingly, under Boeing, the Board would have to weigh the employer’s legitimate justifications for the catch-all rule against the impact on Section 7 rights, and how the Board would find in this particular situation is simply unknown at this time.
Continued Uncertainty for Employers
Although the Board’s new standard and analysis under Boeing has given employers additional leeway to craft rules and regulations governing employee conduct and interactions with others, employee handbooks continue to be rife with pitfalls for otherwise well-intentioned employers. This uncertainty continues to affect employers who seek to prohibit rude, discourteous, disruptive, or disloyal behavior among their employees as, even under Boeing and the General Counsel’s guidance, such rules may still run afoul of the Act.
