The NLRB has created a new test to determine whether company policies on employee behavior interfere with employee rights under NLRA Section 7 “…to unionize, to join together to advance their interests as employees, and to refrain from such activity (quoting from nlrb.gov).”
As employers, you want to maintain discipline in your establishments, requiring your employees to, among other things:
· Treat others with dignity, courtesy, respect, and politeness
· Speak in tones of voice that are appropriate for the business
· Manage conflict with others in a respectful way rather than be confrontational.
So, let’s make those bullet points into what we’ll (hypothetically) call our Civility Policy. There can’t be anything wrong with that. Right?
Well, wrong – in all likelihood – at least right now.
And why? What could be wrong with requiring your employees to act like civilized human beings at work? The policy applies to everyone, so how can it be discriminatory or improper?
This is an example of a “facially neutral policy.” It doesn’t single out any particular group or type of employee. It applies to everyone.
Here’s how our facially neutral Civility Policy could, according to the Board, run afoul of section 8(a)(1) of the Act:
A mythical employee, Sally, wants to start a union organizing drive with some of her co-workers.
She worries that the Civility Policy requires her to “speak in tones of voice appropriate for the business.” After all, discussions with management over unionizing are likely to get heated. Sally is pretty worked up over her perceptions of her employer’s unfair working conditions.
What if she or the other employees raise their voices, or in the heat of the moment use some salty language? Would that be “disrespectful, or “confrontational?” Would filing a ULP with the NLRB be viewed as creating confrontation?
Sally feels dependent upon her employer for her very economic survival. If she gets fired for a policy violation, her family doesn’t eat. So, she keeps her mouth shut and goes to work, despite her concerns about her working conditions.
That’s the outcome that worries the NLRB. And that’s how our Civility Policy can get tanked by the Board – even if we never apply it to protected employee activities and never intended to do so.
On August 2, the Board issued its anticipated decision in Stericycle, Inc., (372 NLRB No. 113) adopting a new legal standard (based on the 2004 Lutheran Heritage framework) for review of facially neutral employment policies like our Civility Policy, above.
Under Stericycle, the Board’s general counsel must prove that an employee who contemplates engaging in Section 7 protected activity could reasonably interpret the policy to discourage the exercise of rights under the NLRA. If so, the policy is presumptively unlawful under Section 8(a)(1) of the Act.
The employer’s intent in maintaining the policy is immaterial to the Board.
The employer can overcome the presumption of invalidity – but only if the employer proves: 1) That the policy advances a legitimate and substantial business interest, and 2) The employee is unable to advance that interest by a more narrowly tailored policy.
In Sally’s case, her employer could likely prove that the Civility Policy advances a legitimate and substantial business interest to ensure that employees do not act like rowdy fans at a college football game.
But under the second part of the test, the Board is likely to find that the employer could draft the policy more narrowly to clarify that Sally and her cohorts have every right to try to organize without fear of reprisal.
The Board is likely to find that the employer committed an unfair labor practice by implementing a policy that is overbroad, sending the employer back to the policy drawing board to try again.
The Stericycle decision overruled Boeing Co. (2017) and LA Specialty Produce Co. (2019), which created categories for legal review of facially neutral rules, including a category of rules that were always considered to be lawful. (We’ll refer to both cases collectively as, “Boeing.”)
When a rule, reasonably interpreted, would potentially interfere with an employee’s protected rights, the Boeing Board looked at two things: 1) The nature and extent of the potential impact on employee rights, and 2) Legitimate justifications for the rule.
The “always lawful” category included such things as investigative-confidentiality rules, non-disparagement rules, Boeing’s “no camera” rule, rules prohibiting outside employment, and rules requiring employees to follow basic standards of civility like our Civility Policy.
The Boeing test leaned in favor of employers’ rights to maintain discipline in the workplace. In overruling Boeing, the Stericycle Board wrote, “…Boeing’s purported balancing test gives too much weight to employer interests.”
Stericycle wiped out Boeing’s employer-friendly, categorical approach in favor of a case-by-case, employee-favorable test. Employer interests are still in the equation with Stericycle, but much less so than under Boeing.
Let’s change the facts a bit in Sally’s case to demonstrate the difference between the Stericycle and Boeing tests.
Sally wants to start a union organizing drive with some of her co-workers.
She and her co-workers have read the company handbook, which includes the Civility Policy (as quoted above in this article).
The policy doesn’t mention union campaigns, and the union has told Sally and the other organizers that they have a legal right to pursue unionization under NLRA Section 7 without fear of reprisal. Sally and her cohorts do not consider their protected activities within the scope of the Civility Policy.
Sally and her co-workers solicit authorization cards, file a petition for election with the NLRB, and carry out a campaign with the employee population.
Sally and the union lose the ensuing election. The company remains non-union.
The union files a ULP, claiming that the election was tainted by the Civility Policy, which could have chilled employee participation in the campaign and election.
If the Board reviews the Civility Policy in accordance with these facts and uses the Boeing test, it will place the Civility Policy in the “always legal” bucket, find that the policy had no impact on the employees, and that the employer had a legitimate reason for the policy. It will not be concerned with the potential overbreadth of the policy. The policy is legal and has no effect on the election.
If the Board uses the Stericycle test, it will likely find that a reasonable employee contemplating protected activity could have been dissuaded from organizing, campaigning for or supporting the union (even though Sally and her cohorts were not dissuaded) and, therefore, the policy is presumed to violate the NLRA.
The Board may then further find that the employer could write the policy more narrowly and with more specificity to ensure that employees feel free to exercise protected NLRA rights.
(And under Cemex, Inc., covered in last month’s article on this website, the Board could then enter a bargaining order and force a union upon the company, despite the failed election. If you’re not aware of Cemex, please look at last month’s article).
The Board made the Stericyle test retroactive, as it does in most cases these days. So, employers who relied on Boeing in good faith will now have their actions judged by the new standard. It is likely that unfair labor practice allegations will increase.
Stericle and Boeing are examples of Board “policy oscillation,” sometimes called the “whiplash effect,” when a new Board majority interprets the NLRA differently from a past Board. The Supreme Court has confirmed the Board’s authority to regulate employer work rules as part of the flexibility the Board requires to protect employee Section 7 rights, including the right to modify its interpretations from time to time.
This policy oscillation is a nightmare for employers, who must marshal their always-limited resources toward the operations side of the business. They hardly have time for research on employment laws, and even if they did the complexity of employment laws can make interpretation risky.
Employers would be wise to dust off their policies, rules and employee handbooks and procure a Stericycle compliance review.
Unfortunately, an unintended consequence of Stericycle reviews could be longer, wordier, more reader-unfriendly versions of company policies that will likely go unread or, at best, be difficult to comprehend. Care should be taken to meet Stericycle tests without creating lengthy disclaimer- and legalese-ridden tropes that do no one any good.
Employers need a plan for covering the bases and staying current on employment law requirements. An important part of any plan is training for your management team; and no one is better positioned for that than your MARC team of seasoned labor relations professionals. Visit our Services page and see how MARC can help your organization.