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The NLRB and Civility: A 2015 Update (Part II of II)

By W. Terrence Kilroy

This is my second post in a series discussing recent NLRB decisions thought by some to have fostered a decline of civility in the workplace.  Relatedly, some commenters have criticized recent NLRB decisions finding so-called courtesy work rules and other somewhat ambiguous work rules unlawful because those rules could be reasonably construed to prohibit Section 7 activity.  Ambiguous work rules that could be read to have a coercive meaning are being construed against the employer.  Consequently, employers must adapt their workplace civility rules to comply with evolving Board precedent. 

An example of one of these cases is Karl Knauz Motors, Inc., where the employer’s rules prohibited employees from having a “bad attitude” and there was a courtesy rule that would restrict employees from taking actions which “damage (the employer’s) image or reputation.”  The Board held that both rules would reasonably coerce employees from criticizing their employer’s terms of employment – a right protected by Section 7 of the Act.  Thus, these rules were unlawful.

There have been dozens of NLRB cases striking down work rules the Board concluded as coercing employees when exercising their Section 7 rights.  Those cases came at such a pace and volume that it was difficult for employers to track and make sense of them all.  In March 2015, the General Counsel of the NLRB issued a memorandum which attempts to harmonize those decisions and clarify the Board’s criteria so employers could better understand their responsibility to insure work rules are lawful. 

Work rules which require employees to be “respectful” or prohibiting “disrespectful” conduct are red flags for the NLRB.  Work rules which are not more narrowly defined than requiring “respect” to the employer will be found unlawful as employees have a right under Section 7 to criticize or protest their employer’s policies. 

Similarly, the NLRB will strike down work rules which merely prohibit “offensive”, “derogatory”, “insulting”, “negative” or “inappropriate” comments towards management or co-workers.  Prohibiting making false statements about the employer is also unlawful unless it is maliciously false.  Similarly, requiring employees “cooperate” with supervisors will generally be considered unlawful.  Insubordination is a clear enough directive to be a lawful work rule; not so if it is coupled with “or other disrespectful conduct.”

The Board views employees as having a right to engage in debate with supervisors about terms of employment even though such debates are “heated”.  Words such as “offensive”, “derogatory”, “insulting”, “negative”, “embarrassing” or “inappropriate” have been deemed by the Board to be too ambiguous in work rules, standing by themselves, to be upheld. 

One way of curing such ambiguous rules is to not mention the employer as part of the prohibition.  For example, a work rule which prohibits “inappropriate treatment of employees, customers or visitors” would likely be upheld.  A work rule which prohibits rudeness or disrespect toward a customer will be upheld as well.  But a work rule prohibiting disrespect toward “supervision, employees and customers” would be too broad and unlawful.

Another method of curing an ambiguous work rule is to better define the term, or use other terms with the work rule to make it clear that the rule is only focused on the most serious misconduct.  The term “disrespectful (to management)” by itself would be unlawful — but if it is expanded to state an employee cannot be “insubordinate, threatening, intimidating, disrespectful or assaulting” a supervisor,  may be upheld because it indicates only the most serious misconduct is intended to be prohibited — not merely disagreements with management over terms and conditions of employment. 

One final consideration for employers is to include language in work rules which states that “nothing in these rules is intended to restrict employees’ rights to discuss wages, hours, and terms and conditions of employment with management and co-workers.”  In close questions, such language may enhance the likelihood of a work rule governing civility in the work place being found lawful.

The NLRB’s position on work rules is frustrating to employers as it requires each rule respecting an employee’s conduct toward the company or management be scrutinized and perhaps clarified.  So too, discipline of employees for vulgar and hostile communications with management; it too seems to be a complicated and uncertain analysis.  But a better understanding of the Board’s standards and the need for consistent application of work rules can lessen an employer’s risk of violation.