Theater of the Absurd - U.S. Chamber of Commerce

45 Pages·2015·0.28 MB·English

Theater
of the
Absurd
The NLRB Takes on the Employee Handbook
TABLE OF CONTENTS
I. Introduction _______________________________________________ 3
II. Prelude ___________________________________________________ 5
III. Showtime: Areas of Contention _____________________________ 8
Act 1. The Confidentiality Conundrum ______________________ 8
Scene I. Banner Health _________________________________ 9
Scene II. Boeing _______________________________________11
Scene III. Costco ________________________________________12
Scene IV. Stant USA ____________________________________13
Scene V. Piedmont Gardens _____________________________13
Act 2. Bolstering Bad Behavior _____________________________15
Scene I. Stant USA, continued __________________________15
Scene II. Casino San Pablo ______________________________16
Scene III. Care One Management _________________________17
Scene IV. Hooters _______________________________________18
Act 3. Defending Defamation ______________________________20
Scene I. Pier Sixty _____________________________________20
Scene II. Costco, continued ______________________________21
Scene III. Dish Network _________________________________22
Scene IV. McKesson _____________________________________23
Act 4. Proprietary Poppycock ______________________________24
Scene I. Boeing _______________________________________24
Scene II. Giant Food ___________________________________25
Act. 5 At-Will Won’t Do ___________________________________26
Scene I. American Red Cross Arizona ____________________26
Scene II. Hyatt Hotels __________________________________27
Act 6. Winning Isn’t Everything ____________________________28
Target ________________________________________________28
Act 7. Dressing Down Dress Codes _________________________30
Scene I. Boch Imports __________________________________30
Scene II. Alma Products ________________________________31
IV. The Characters Speak: Not-So-Helpful Guidance _____________33
V. Epilogue _________________________________________________36
Endnotes ____________________________________________________38
Theater
of the
Absurd
The NLRB Takes on the Employee Handbook
Theater of the Absurd
I. INTRODUCTION
When Congress passed the National Labor Relations Act (NLRA or the
Act) in 1935 to promote stability in labor relations, it created a quasi-
judicial agency, the National Labor Relations Board (NLRB or the Board),
and charged it with implementing the law. In subsequent decades, the
NLRB functioned reasonably well with appointees from both political
parties. Notwithstanding policy differences arising from different
ideological perspectives, the NLRB served as the rational arbiter Congress
seemed to have in mind. Indeed, many NLRB precedents have stood for
years, if not decades, because of the Board’s efforts to balance the rights of
employers, unions, and workers alike.
Unfortunately, in recent
years the NLRB has changed.
Rather than serving as an
impartial referee, it has become
dominated by a decidedly
pro-union majority. These
activist Board members have
disregarded the overarching
objectives of the NLRA and
disrupted the careful balance
that the Board has traditionally
sought. Instead, this majority, along with the Board’s appointed General
Counsel, have pursued a one-sided agenda at the expense of employers
and workers.
One particular way the NLRB’s majority has transformed the agency is
through adopting a wildly expansive reading of the NLRA’s protections in
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The NLRB Takes on the Employee Handbook
order to undermine sensible and widespread workplace policies. Through
a series of decisions and official guidance, the NLRB has undertaken a
campaign to outlaw heretofore uncontroversial rules found in employee
handbooks and in employers’ social media policies—rules that employers
maintain for a variety of legitimate business
reasons. This study highlights several
decisions in which the NLRB has found
Through a series of
commonsense employee handbook policies
decisions and official
to be in violation of the law. While it is
guidance, the NLRB has
not meant to be a comprehensive review
undertaken a campaign
of NLRB cases in this area of labor law, it
to outlaw heretofore
offers a number of examples to illustrate
uncontroversial rules
how many of the Board’s decisions of found in employee
late seem to run counter to any balanced handbooks and in
reading of the NLRA and to simply fly in employers’ social media
the face of common sense. In so doing, the policies—rules that
report is intended to educate the business employers maintain for
community, the media, and the broader a variety of legitimate
business reasons.
public about the sweeping impact of the
NLRB’s increasingly biased, and some
would say irrational, policy agenda.
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Theater of the Absurd
II. PRELUDE
The Board’s efforts cover several aspects of the workplace, including policies
dealing with confidentiality, respectful behavior, foul language, proprietary
information, at-will employment, solicitation in the workplace, and dress
codes. The NLRB’s campaign against these policies centers on the Board’s
reading of Section 7 of the NLRA, which says that employees have the right
to engage in “concerted activity” for “mutual aid or protection.”
According to the NLRB, protected concerted activity “generally… requires
two or more employees acting together to improve wages or working
conditions.” 1 That could include discussing the possibility of seeking union
representation, handing out pamphlets to co-workers in the parking lot
after work, joining together to request changes in the workplace, and similar
activity. Employers may not interfere with such actions, but they may and
do maintain policies to ensure that a place of business is well managed. The
legality of those policies generally has not been in question, provided that
they do not cross a certain threshold when it comes to Section 7 rights.
That threshold is set by the 2004 case Lutheran Heritage.2 In it, the NLRB
ruled that an employer’s policy or rule will be found unlawful if it bars
otherwise protected activity. Moreover, even if a rule does not expressly
prohibit protected activity, the NLRB declared it will be found unlawful
under three scenarios: “(1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was promulgated in
response to Section 7 activity; or (3) the rule has been applied to restrict
Section 7 activity.”
However, the current Board seems to have adopted a new definition
of the word “reasonably.” Indeed, it is one that few reasonable people
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The NLRB Takes on the Employee Handbook
would recognize. The NLRB has gone to outlandish lengths to find
commonsense workplace policies unlawful for violating Section 7 rights,
even scouring employee handbooks to find purported violations in cases
where the handbook has nothing to do with the underlying charge.
By interpreting the NLRA’s Section 7 protections so broadly, the NLRB
has increasingly interfered with employers’ ability to manage their own
workplaces, often to the detriment of employees themselves. The result
has become a theater of the absurd, in which Board decisions issued by
bureaucrats specializing in increasingly abstract theories of labor law
run counter to the real-world experiences and necessities of the modern
workplace. As a result, the Board’s irrational interpretations of the law have
created a serious headache for employers and employees looking for stability
and common sense in labor relations.
Not only does the NLRB’s interpretation of Section 7 rights frustrate
employers seeking to manage their workplaces, but in some instances the
Board’s views run counter to guidance provided by other enforcement
agencies, such as the Equal Employment Opportunity Commission
(EEOC). That agency addresses issues like workplace harassment and
explicitly states that “an anti-harassment policy and complaint procedure
should contain, at a minimum … [a]ssurance that the employer will protect
the confidentiality of harassment complaints to the extent possible,” among
other things.3
Moreover, employers are required to prevent a hostile work environment,
which includes conduct “that a reasonable person would consider
intimidating, hostile, or abusive,”4 such as making threats or intimidating
co-workers. Yet the NLRB has ruled that policies ensuring confidentiality
for employees in workplace investigations and prohibiting harassment
somehow interfere with Section 7 rights. To say the least, the Board’s
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Theater of the Absurd
actions have put businesses in what baseball players call a “pickle,” where a
base runner is stranded between two bases and very likely to be tagged out
by the opposing team. In this case, it’s two powerful government agencies
doing the tagging.
The question that stands out is this: What is the rationale for the NLRB’s
fervor when it comes to policing the employee handbook? While the
answer to that question may be difficult to pinpoint, a few possibilities exist.
For one thing, in the last 10 years the number of representation petitions
the NLRB receives has dropped by nearly 50% (4,022 in fiscal year 2005
vs. 2,053 in 2014) while the number of elections held has declined nearly
40% (2,227 in fiscal year 2005 vs. 1,407 in 2014).5 At the same time, the
NLRB’s budget has changed little when
adjusted for inflation, so it could be that the
Board does not have enough to do and is
By charging an
simply searching for ways to keep busy.6
otherwise law-abiding
employer with unfair
Given the current majority’s leanings,
labor practices related
however, another more disturbing possibility
to the employee
is that the Board is using its decisions to
handbook, the Board
assist with future union organizing drives.
can establish a history
By charging an otherwise law-abiding of supposed “anti-union
employer with unfair labor practices related animus.”
to the employee handbook, the Board can
establish a history of supposed “anti-union
animus.” In the event of an organizing
campaign down the road, the NLRB could use that purported animus
to impose restrictions on employer conduct or perhaps even overturn
the results of a representation election if the union loses.7 Whatever the
explanation, the Board’s handbook decisions defy common sense and leave
employers exasperated.
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The NLRB Takes on the Employee Handbook
III. SHOWTIME: AREAS OF CONTENTION
The following sections of this report look at specific handbook policies
the NLRB has targeted. These are all policies that one would not be
surprised to find in an employee handbook. Most Americans, though,
would be surprised to find that maintaining these policies could get a
business in trouble with the federal government.
Act 1. The Confidentiality Conundrum
Employee handbook rules requiring confidentiality have earned particular
scrutiny in recent years, with the Board ruling that such commonplace
provisions run afoul of the law in many cases.
In March 2015, the NLRB’s Office
of General Counsel (OGC) issued a
Since the passage of
guidance memorandum covering
the NLRA, Congress has
confidentiality policies and other related
enacted numerous laws
topics, which stated:
that address certain
employment situations
Employees have a Section 7 right
that could directly
to discuss wages, hours, and or indirectly require
other terms and conditions of confidentiality during
employment with fellow employees, internal investigations.
as well as non-employees, such as
union representatives. Thus, an
employer’s confidentiality policy
that either specifically prohibits employee discussion of
terms and conditions of employment — such as wages,
hours, or workplace complaints — or that employees
would reasonably understand to prohibit such discussions,
violates the Act.8
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Theater of the Absurd
Despite the seemingly anodyne statement by the OGC, the NLRB has
demonstrated that it views restrictions on confidentiality policies to extend
well beyond discussions about wages and hours. It has increasingly
focused on sensitive areas such as personnel investigations and allegations
of misconduct. Most typical employers understandably wish to avoid
gossiping and the spread of inaccurate information, but, unfortunately,
policies requiring employees to treat confidential information as, well,
confidential are facing increasing scrutiny as the cases discussed in
this report illustrate.
Scene I. Banner Health
In the 2012 case Banner Health,9 the Board took on confidentiality policies
involving workplace investigations. The case stemmed from a request by
the company’s human resources consultant for employees filing complaints
to refrain from discussing their allegations until the employer had a chance
to investigate them. While this is common practice, it actually resulted in a
charge filed by the NLRB.
At first, the company’s perfectly reasonable request seemed to pass muster
with the agency. The administrative law judge (ALJ) who heard the case
thought the policy made sense for the simple reason that it “is for the
purpose of protecting the integrity of the investigation” and concluded
that the employer had “a legitimate business reason for making this
suggestion.”10 Incredibly, the Board then overruled the ALJ saying,
“Contrary to the judge, we find that [Banner Health’s] generalized concern
with protecting the integrity of its investigations is insufficient to outweigh
employees’ Section 7 rights.”11
As too many employers have had to do in response to the NLRB, Banner
Health took its case to federal court to challenge the Board’s overreach.
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