Academic journal article Labor Law Journal

The Handbook Rules Charade

Academic journal article Labor Law Journal

The Handbook Rules Charade

Article excerpt

In recent Obama Board decisions, one member expressed disagreement with the Board's standard for determining whether employee handbook rules or policies that do not explicitly cover Section 7 activity are nevertheless unlawful.1 Although he did not disclose his reasons for advocating a reexamination, there are, indeed, ample reasons.

The "Reasonably Would" Standard

In Lafayette Park Htotel} the Clinton Board decided that the lawfulness of a facially neutral rule depends on whether employees would or would not reasonably interpret the rule to prohibit Section 7 activity. If they would so interpret a rule, mere maintenance of the rule would have a "chilling effect" because violations entail disciplinary consequences. Although the Board members disagreed vigorously on the application of the would-reasonably-interpret standard, they did not disagree on the standard itself.3 Six years later in Martin Luther Memorial Home, Inc.? the Bush Board adhered to the same standard. Once again, the disagreement among Board members focused on the application of the standard.

The standard itself, however, has inherent flaws. It depends on employees' understanding of the meaning and scope of rules and policies, but is not based on any actual, much less empirical, evidence of that understanding. Rather, it postulates one understanding or another based on an intuitive judgment about employees' understanding. Board members have absolutely no expertise as to how employees would interpret facially neutral but ambiguous behavioral rules. Over the decades, the Supreme Court repeatedly deferred to the Board's judgments about how the general statutory precepts of the NLRA should be interpreted based on the Board's "expertise"5 or "cumulative experience."6 The Board has no expertise or cumulative experience in education, psychology or linguistics, the only fields that might equip Board members to make enlightened judgments about how employees would construe ambiguous language.

Expertise and Deference

The Board's lack of expertise may explain why some reviewing courts have shown surprisingly little deference to Board determinations about how employees would interpret rules. For example, in Adtranz the Clinton Board, 2 to 1, found that a rule against using "abusive or threatening language to anyone on Company premises" was unlawful because it did not define "abusive," and thus, employees "reasonably could interpret it as barring lawful union organizing propaganda."7 The D.C. Circuit found the Board's position neither '"reasonably defensible'" nor "even close." The Court's ruling may be understood as rejecting the Board's hypothesis that employees reasonably would understand the rule to cover Section 7 activity, but it took pains to chastise the Board for finding something wrong with a rule that requires employees "to comport themselves with general notions of civility and decorum when discussing union matters or exercising other statutory rights."8

In Standyne Automotive Corp. ,9 the Bush Board, 2 to 1, found lawful an oral rule reciting: "No one should be harassed. Harassment of any type is not tolerated by the company and will be dealt with." The two-member majority explained that "[gjiving [the manager's] statement a reasonable interpretation and reading it as a whole, we cannot find that employees would reasonably construe the Respondent's message as prohibiting Section 7 activity."10 On appeal, the Second Circuit, after acknowledging that its review of Board decisions is "highly deferential," found the Board's determination unreasonable.11 Because the employer already had adopted an unlawful no-solicitation rule, the court decided that "no reasonable employee could fail to infer that the rule against "harassment," which [the manager] did not define and which, for example, can amount to no more than persistent annoyance [citation omitted] was intended to discourage protected election activity."12

In Guardsmark, LLC13 the Bush Board, 2 to 1, found that a rule telling security guards not to "fraternize on or off duty, date or become overly friendly with client's employees or with co-employees" was lawful because "employees would reasonably understand the rule to prohibit only personal entanglements, rather than activity protected by the Act. …

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