Rich Meneghello, BridgeTower Media Newswires
The past eight years have been tough for employers when it comes to maintaining reasonable policies for employees. For those not keeping up, the National Labor Relations Board (NLRB) has routinely pronounced what most would consider to be commonplace and commonsense policies to be in violation of federal labor law. This has often left employers in a difficult position, trying to strike a balance between establishing sensible work rules and complying with the National Labor Relations Act (NLRA).
But good news could be on the way. A very recent decision from an NLRB administrative law judge upholding a set of reasonable employer policies could signal that there is light at the end of the tunnel. All employers with employee handbooks – whether unionized or not – should familiarize themselves with this new development.
—————
Background: How did we get here?
The problems’ origin dates to 2004, when the NLRB ruled that a work rule is not only unlawful if it explicitly restricts employees’ rights to engage in union or protected concerted activity, but also if employees would “reasonably construe” the language to prohibit protected activities. The Lutheran Heritage Village decision was not especially troublesome at first, as it was reasonably applied and worked only to root out those policies and rules that most people would agree cross the line. But once the NLRB became controlled by Democrat appointees, it quickly tilted too far and began interpreting the opinion in a way that was increasingly problematic for employers. The union-friendly NLRB aggressively expanded the reach of the decision and started creating havoc in workplaces across the country.
For example, otherwise-innocuous employer policies requiring professionalism, a friendly demeanor, or confidentiality with respect to business information being shared outside the workplace were struck down. Other policies prohibiting employees from taking pictures at work, sharing information about business practices or co-workers, or engaging in uncivil behavior were similarly found to be in violation of the Lutheran Heritage Village standard. This spate of negative rulings forced employers to re-evaluate and revise their handbooks at the expense of losing control in the workplace.
But an Oct. 19, 2017 decision by an NLRB judge could herald the change of all of that. We may look back years from now and say that the Green Apple Supermarket case was the spark that started it all.
—————
Light at the end of the tunnel
Green Apple Supermarket is a full-service supermarket in Queens, New York. In May 2016, it fell under the scrutiny of a local branch of the United Food and Commercial Workers International Union (UFCW) upon commencement of an organizing drive. As part of this campaign, the union examined the company handbook under a microscope and found a number of provisions it believed violated the NLRA. The two critical portions for purposes of this analysis were the following two rules:
“All documents are considered confidential and the sole property of Green Apple Supermarket and are not to be distributed or taken off the premises. There is to be no copying, faxing or photographing of documents. Failure to comply may result in dismissal and legal action.”
“Texting and playing electronic games is strictly prohibited and will result in a warning: 3 warnings will result in a dismissal.”
The union filed an unfair labor practice charge against the company, alleging the rules interfered with, restrained, or otherwise coerced employees in the exercise of their rights under the NLRA. The case went to trial before ALJ Kenneth Chu and wrapped up in June 2017; a few weeks ago, Chu issued his opinion and rejected the complaint.
Although he acknowledged that a rule or policy could violate the NLRA if it reasonably would be read by employees to chill their rights to engage in union or protected concerted activities, Chu found no evidence that was the case with respect to Green Apple employees. He pointed out that no testimony was taken from any witness, and no evidence was provided, to show how and in what manner these rules actually affected the employees from exercising their rights. For Chu, examining just the plain language of the challenged rules was not enough. What mattered was how and in what manner the rules affected employees.
—————
Good news, bad news
This decision is certainly good news for employers. It represents one of the first times that an administrative law judge has decided to rein in the expansive reading of the Lutheran Heritage Village standard. It is a hopeful sign that employers will soon be able to impose reasonable measures over their workers without fear of reprisal from the NLRB. And it could signal even better things to come: if the current Republican-controlled NLRB hears this case on appeal, it could be the end of Lutheran Heritage Village’s “reasonably construe” standard altogether.
In fact, since early 2016, now-NLRB Chairman Philip Miscimarra has advocated for a new standard of review of employer policies. According to Miscimarra, the current reading of Lutheran Heritage Village’s standard does not take into account the legitimate employer justifications of particular policies, rules and handbook provisions. He has articulated his own proposed standard through a number of dissenting opinions he has authored in cases decided by the previously Democrat-controlled NLRB. Now he is the chairman of a Republican-controlled NLRB, and help could be on the way.
Now the bad news. This decision is at the lowest levels of the NLRB, and there is no guarantee that the case will be taken up on appeal or that a full reversal will be granted by the NLRB. At the current time, employers should still be cautious with respect to their work rules, especially those involving privacy and confidentiality. Unless and until the aggressive standard is scaled back, employers need to be concerned that reasonable workplace rules can be found to be in violation of the law.
—————
Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8044 or rmeneghello@fisherphillips.com, or follow him on Twitter – @pdxLaborLawyer.
