ALJ Feasts On Employee Handbook, Finds Policies Unlawful Under NLRA

Garrett Wozniak
Garrett Wozniak

President Trump recently announced the two individuals he will nominate to the National Labor Relations Board (NLRB).  The announcement, covered in a prior blog entry, is the next step in changing the trajectory of the NLRB from its heavy employee tilt toward a more employer-friendly outlook.  Until the two new members are confirmed and the NLRB begins issuing decisions altering the labor law landscape created by President Obama’s NLRB, employers will encounter decisions like one recently issued by Administrative Law Judge Robert Ringler in BCG Partners, Inc., 28-CA-178893 (May 10, 2017).

G&E Real Estate Management Services, Inc. (G&E) is a national company which provides maintenance, property management, housekeeping, and other services involving real estate management.  A company supervisor filed a charge with the NLRB alleging that many of G&E’s handbook provisions violated the National Labor Relations Act (NLRA).

Section 7 of the NLRA states that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.

It is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of Section 7 rights.  Under NLRB precedent, a work rule is unlawful if it “would reasonably tend to chill employees in the exercise of their Section 7 rights.”  If a rule does not expressly restrict  protected activity, it is nevertheless unlawful if:  (a) employees would reasonably construe the language to prohibit protected activity; (b) the rule was created in response to union activity; or (c) the employer applied the rule to restrict protected activity.

In BCG Partners, the ALJ found that 17 of the employer’s policies were unlawful, including:

Responsive Action policy – the employer’s policy permitting discipline against employees who provide false information during an investigation was unlawful because it was too broad.  To be lawful, the policy should have been limited to employees who “maliciously” provide false information.

Reference Inquiries policy – the employer’s policy requiring information requests to be forwarded to HR was unlawful because it “may reasonably be construed to ban employees from engaging in” protected activity.

Confidentiality policy – the employer’s policy permitting disciplinary action against employees who disclose confidential Company information was unlawful because employees could interpret the policy as restricting employees’ ability to engage in Section 7 protected activity.

Company Property policy – the employer’s policy banning non-work-related use of the Company’s facilities and equipment was an unlawful ban on solicitation and other protected activity as permitted by NLRB precedent.

Tape Recording policy – the employer’s policy prohibiting employee’s from recording conversations without prior approval was found unlawful because it infringed upon employees’ ability to engage in protected activity.

Respectful Workplace policy – the employer’s policy seeking courtesy and respect, and admonishing employees to avoid fights and offensive language was an unlawful ban on “any disrespectful workplace commentary.”

Social Media policy – the employer’s policy requiring employees to obtain consent before posting about the Company on social media was overbroad under NLRB precedent.

The ALJ found a number of other policies unlawful as well — in each case concluding that the policies could, maybe, be construed as impeding upon employee’s Section 7 rights.  For almost every policy, the employer argued that it had not applied the policy to restrict or otherwise interfere with Section 7 rights.

BGC is a reminder that “common” workplace policies are not safe and are open to assault until the NLRB composition and Board precedent change.

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