NLRB Splits Again Over Employer Conduct Rules

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By Lawrence E. Dubé

April 14 — National Labor Relations Board members disagreed again about the legality of employer rules that don't expressly prohibit workers from exercising their federal labor law rights but might reasonably be construed as interfering with those rights.

The board members agree that merely maintaining certain employment rules can interfere with employee rights and violate the National Labor Relations Act, but they differ on how to distinguish between lawful and unlawful rules.

The NLRB held April 13 in a 2-1 decision that William Beaumont Hospital in Michigan violated NLRA Section 8(a)(1) by maintaining an employee code that prohibited, among other things, conduct that “impedes harmonious interactions and relationships.” Members Kent Y. Hirozawa and Lauren McFerran said the ruling was based on a “relatively unremarkable application of well-established law.”

Member Philip A. Miscimarra dissented from the unfair labor practice finding, stating the board has been “remarkably indifferent” to the legitimate concerns of employers, including health-care institutions. Miscimarra argued for the adoption of a new balancing test in disputes over employee rules and codes.

Conduct Rules at Issue in NLRB Case

The dispute reached the board on the NLRB general counsel's complaint alleging the hospital illegally fired two nurses for making NLRA-protected complaints about hospital staffing and safety.

An administrative law judge rejected the discharge allegations, and the board held the employer established it would have fired the nurses for aggressive and disruptive behavior that was unrelated to any protected activity.

However, Hirozawa and McFerran agreed with the ALJ that the hospital violated the act by maintaining overly broad conduct rules that employees would have understood to be limits on their protected activity under the NLRA.

Majority Finds Interference With Rights

The board majority cited several code provisions, including not only the ban on interfering with “harmonious interactions” but also restrictions on “negative or disparaging comments” on a number of subjects and “behavior that is counter to promoting teamwork.”

The majority relied on Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646, 176 LRRM 1044 (2004) (228 DLR A-1, 11/29/04), in which the board held that an employer violates Section 8(a)(1) if it maintains a work rule that employees would reasonably understand to prohibit NLRA-protected activity.

The board said that “Lutheran Heritage Village is no obstacle to a hospital employer seeking to promote safe patient care by legitimately regulating employees' on-the-job interactions,” but limiting board review to an employer's application or enforcement of facially neutral rules “would leave the potential chilling effect of such rules on protected, concerted activity unaddressed.”

Dissent Calls for ‘Meaningful Balancing.'

Miscimarra, dissenting from the Section 8(a)(1) findings, wrote that “it defies common sense to find that a hospital violates Federal law merely by stating that physicians and nurses must promote ‘harmonious interactions and relationships.' ”

“In many cases,” the dissent said, “Lutheran Heritage invalidates facially neutral work rules solely because they are ambiguous in some respect.”

Miscimarra argued the board should replace its current test with a “meaningful balancing” of employee rights and legitimate employer interests. “A facially neutral rule should be declared unlawful only if the justifications are outweighed by the adverse impact on Section 7 activity,” the dissenting board member said.

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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