It is not unusual for the National Labor Relations Board (NLRB) to change its position on recurring and important issues for both unionized and nonunion employers. Political changes at the White House and the appointment of new board members often herald a new direction in the board's rulings. Nevertheless, the unusual number of reversals that have been recently issued by the board on key issues has attracted national attention.
In five rulings issued since June 2004, the NLRB has changed course on issues involving employee rules of conduct, an employee's right to representation at investigatory interviews, organizational rights of temporary staff, and the impact of unlawful employer rules and statements on NLRB-conducted union elections. Several of these decisions affect nonunion as well as unionized employers. A sixth case currently awaiting decision is expected to define the reach of agreements between employers and unions that circumvent the traditional NLRB-supervised election process, in which employees vote on whether they wish to be represented by a union. Following is a look at how these new decisions are redefining what employers can and cannot do.
Rules of conduct. During the past several years, the NLRB has heard a number of cases on employee conduct rules, which usually appear in an employee's handbook or policy manual. These rules tend to cover a wide array of topics, including whether employees may discuss wages with coworkers, wear unauthorized pins and decals, or distribute information on company premises. In analyzing the lawfulness of these rules, the board has focused on whether the rule reasonably tends to chill the exercise of employee rights.
Under NLRB rules, employees have the right to choose to engage in union activity and, involving two or more employees, to try to bring about changes in the "terms and conditions of employment or otherwise improve their lot as employees." The NLRB's position has been that it is an unfair labor practice for an employer to maintain an unlawful rule, even if the rule is not enforced.
Based on this analysis, the board has found that rules prohibiting "loud, abusive or foul language" or "using abusive or threatening language to anyone on company premises" are unlawful as written. The board's rationale has been that, without further explanation by the employer about what it specifically considers abusive or foul language, these rules could reasonably be interpreted by employees as prohibiting lawful activity.
Recently, however, the board has adopted a different approach to employee conduct rules in terms of what employees may reasonably interpret as prohibiting union activity. In Lutheran Heritage Village-Livonia (NLRB, No 75, 2004), the board was asked to decide the lawfulness of a rule that prohibited "using abusive or profane language in the presence of or directed toward a supervisor, another employee, a resident, a doctor, a visitor, a member of the resident's family, or any other person on company property." In the past the NLRB would have found the rule unlawful as written. However, in this case, the board decided that employees would not reasonably construe the language to prohibit lawful union activity. The board recognized that an employer has a legitimate right to maintain order and to establish a "civil and decent workplace." The board also found no evidence that the rule actually had been applied to such activity or that the company had adopted the rule in response to union activity.
Upholding another rule of conduct in the same case, the board found no problem with the rule prohibiting "harassment of other employees, supervisors, and any other individuals in any way." The mere maintenance of this rule was not unlawful, ruled the board, because there was no justification for concluding that employees will interpret the rule unreasonably to prohibit conduct that does not rise to the level of harassment, or to presume that the company will apply it in that manner. …