April 07, 2014

NLRB Strikes Again: Discourteous or Inappropriate Behavior Policy Found Unlawful

On April 2, 2014, the National Labor Relations Board (NLRB) issued another decision to add to its recent lineup of decisions analyzing employer handbook policies. First Transit, Inc. and Amalgamated Transit Union Local #1433, AFL-CIO, Case No. 28-CA-023017. The NLRB's latest ruling addresses claims that several provisions in First Transit's employee handbook were unlawful because employees would reasonably construe them to prohibit Section 7 activity. Following is a summary of each challenged handbook provision, along with the NLRB's analysis:

  • Prohibition on "Use of Company Property for Activities Not Related to Work Anytime" — The NLRB relied on the fact that the contested provision was embedded in the part of the handbook addressing stealing, unauthorized removal and inappropriate use of company property, and failure to account for company funds. It found that the prohibition relates to theft or misappropriation of company property and does not create a ban against protected activities on the premises.
  • Prohibition on "Poor Work Habits," Including Loafing, Wasting Time, Loitering or Excessive Visiting — The NLRB determined that employees would reasonably construe the term "poor work habits" to refer only to a failure to perform job duties at times when the company expects productivity. The NLRB distinguished this policy from policies examined in other NLRB "no loitering" cases, which typically involve unlawful express prohibitions on loitering outside of employees' working hours.
  • Prohibition on Discourteous or Inappropriate Attitude or Behavior — The NLRB found that this restriction on attitude and behavior toward passengers, other employees or members of the public was unlawfully overbroad. The NLRB explained that the patent ambiguity in the phrase would allow employees to reasonably construe the provision as limiting their communications concerning employment (including those communications protected by Section 7 of the National Labor Relations Act).
  • Prohibition on Profane or Abusive Language That Is Uncivil, Insulting, Contemptuous, Vicious or Malicious — Unlike the prohibition discussed above, the NLRB found that First Transit's proscription against "uncivil" and "insulting" language was not so "patently ambiguous" as to render it overbroad. Examining the language in its context, the NLRB found that reasonable employees would construe this prohibition as merely requiring that they act in accordance with "general notions of civility and decorum."

First Transit's handbook had in it a Freedom of Association (FOA) policy. The FOA policy provided that "during union organizing campaigns, management shall support the employee's individual right to choose whether to vote for or against union representation without influence or interference from management." First Transit then argued that this policy acts as a savings clause, informing all of its handbook provision and precluding a finding that any of the provisions unlawfully restricted Section 7 rights. The NLRB found that, while an FOA policy may sometimes clarify the scope of an otherwise ambiguous and unlawful rule, it did little here to ensure that employees would not read certain handbook provisions as infringing on their Section 7 rights. It explained that First Transit's FOA rule was too narrow in focusing solely on union organizational rights, was placed too far from the provisions in question, and would not serve to insulate First Transit from liability for its unfair labor practices. 

In summary, the NLRB continues to subject non-union employer's handbook policies to scrutiny.  Additionally, savings clauses are helpful to clarify the scope of employers' policies but should be far reaching, not focused exclusively on union activity, and contained in various policies that could impact employees' Section 7 rights.

If you have questions about this or other labor matters, please contact any of Faegre Baker Daniels' labor management relations lawyers.

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