November 9, 2017
The current labor board rule on workplace “civility” policies is either a necessary bulwark against employee censorship or an unsophisticated standard that bogs businesses down unnecessarily—depending on which of the politically appointed NLRB members you ask.
Most employers have a rule in their workplace handbook requiring workers to conduct themselves “respectfully,” “courteously,” or something of the sort. The National Labor Relations Board in the 2004 case Lutheran Heritage Village-Livonia established a test for determining when such policies are worded in a way that might intimidate workers and prevent them from doing things they’re permitted to under labor law—like trying to start a union.
The recent confirmation of three of President Donald Trump’s nominees means the now GOP-majority board could get a chance to revisit the standard. Board members’ comments during a labor law conference hosted by the American Bar Association Nov. 9 are likely a preview of the legal battle and discussions to come should that opportunity arise.
Currently, civility rules can be invalidated if workers would “reasonably construe” them to prohibit organizing and other employee activity protected by the National Labor Relations Act.
The rule was developed “on the theory that employees can be chilled in the exercise of their rights” when work policies are vague or too broad, member Lauren McFerran (D) said.
Employees could be confused, for example, by a requirement to “respect” superiors and co-workers, interpreting that to mean they would have to obey a supervisor’s order to stop talking to co-workers about a union. Such a rule could “chill” the worker’s desire or ability to exercise labor rights, McFerran said.
But Philip Miscimarra (R), the current chairman who’s term expires at the end of December, disagreed with that reasoning.
“I do think this is an area where the current board standard is too limiting” on employers, he said.
Miscimarra said it’s surprising that language about “respectful” or “courteous” behavior would be banned by the statute when such conduct “would reasonably be expected by everybody.”
“But it violates our statute to put it in writing,” he said.
Many of the cases that come before the board involve rules that employers haven’t thought through or put through legal review, member Mark Gaston Pearce (D) said.
“You see a lot of ridiculous stuff in them,” he said.
The current rule makes sense because the law shouldn’t permit situations where workers think they must not be vocal or complain about a legitimate grievance because it might be “uncivil” and thereby violate the employer’s rulebook.
“What’s clear is that vagueness is a problem, and self-censorship is an insidious consequence to dealing with vague and poorly written rules,” the Democrat-appointee said.
Miscimarra called for “some latitude” for employers.
“I think the board needs to develop, in my opinion, a more refined standard that would permit us to make more sophisticated judgments” about when a rule is impermissible, he said. “That’s the view I’ve maintained for the past year and half.”
Micsimarra’s comments on the matter—and a number of dissenting opinions he’s written—will likely parallel the arguments the GOP majority would make if it revisits the issue after his departure and decides to change the standard.
The same goes for McFerran and Pearce’s thoughts, although they’re likely to be the dissenting judges this time, if the issue is revived.
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