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NLRB Issues Series of Decisions Affecting Workplace Policies

By Ronald W. Novotny and Jonathan Judge

In the past several months, the National Labor Relations Board (NLRB) has issued a series of decisions that could affect everyday policies that union and non-union employers maintain in the workplace.  The decisions are summarized below.

First, in Flex Frac Logistics, 358 NLRB No. 127 (9/11/12), the NLRB ruled that a statement in an employer’s at-will policy requiring employees to keep “personnel information and documents” confidential was “overly broad” and illegal.  The NLRB held that such language had a reasonable tendency to chill employees’ exercise of their right to engage in “protected and concerted activities” guaranteed to them by the National Labor Relations Act (NLRA).   The NLRB specifically found that the rule would lead employees to reasonably believe that they were prohibited from discussing wages or other terms and conditions of employment with nonemployees such as union representatives. 

Similarly, in Knaus BMW, 358 NLRB No. 164 (9/28/12), the Board found that an auto dealership’s rule that “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership” was unlawful because it could reasonably tend to limit employees’ ability to object to their working conditions and seek the support of others in improving them.  In both cases, the NLRB relied on the fact that employees could be disciplined or terminated for violating the policies as the basis for concluding that the policies interfered with their rights under the NLRA.

In another ruling that may have broad implications for the ability of employers to conduct workplace harassment investigations, the NLRB in Banner Estrella Medical Center, 358 NLRB No. 93 (7/30/12) invalidated a rule prohibiting employees from discussing with each other ongoing investigations of employee misconduct.  The NLRB stated that absent some evidence that such a confidentiality rule is necessary to protect the integrity of an investigation, it had the effect of coercing and restraining employees in their right to engage in “mutual aid or protection” for the purpose of improving their working conditions.  Under this decision, routine directives to persons interviewed in harassment and misconduct investigations that they must not speak with others about the investigation could run afoul of the NLRA and result in the filing of an unfair labor practice charge, unless the employer can establish that witnesses need protection, evidence could be destroyed, or other detrimental effects could result from not keeping the investigation confidential.

In Costco Wholesale Corp., 358 NLRB No. 106 (9/7/12), the NLRB held that Costco’s rule prohibiting employees from electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation” would reasonably tend to chill employees in the exercise of Section 7 rights.  The NLRB found there was nothing that “even arguably suggested” that protected communications were excluded from this “broad” rule, citing the NLRB’s dictate that rule “be considered in context.” LutheranHeritage Village-Livonia, 343 NLRB 646 (2004).  Employers must give special consideration to the language used in workplace rules as sometimes the “context” that the NLRB espouses comes from rulings on its interpretation of buzz words in prior decisions rather than the context of the workplace.         

Employers should review their employment policies and practices, and workplace rules in light of these recent rulings.  The NLRB is taking a more aggressive approach with regard to rules that it believes infringe upon, or could be reasonably construed to prohibit, employees' exercise of Section 7 rights in union and non-union settings.