Workplace In-Civility: The NLRB Changes Course
by Hunter Taylor
February 1, 2024
Employers have a vested interest in establishing and maintaining a professional environment for their customers and employees. It seems odd to even consider an alternative approach. After all, some amount of mental gymnastics is required to imagine a scenario in which the alternative would benefit the employer. But the concept is not free of its issues in execution. Some efforts to maintain “civility” in the workplace through employee and similar handbooks can create unintended consequences. The National Labor Relations Board (NLRB) has not hesitated to respond to these unintended consequences, as evidenced by its recent shifts in interpretation and enforcement of restrictions set forth in the National Labor Relations Act.
As an example, Section 7 of the Act guarantees employees “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.” It gives employers the right “to refrain from any or all such activities.” Section 8(a)(1) of the Act also makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.
What constitutes an interference, restraint, or coercion made by an employer is less clear. This issue has been the focus of varying (and at times conflicting) NLRB rulings in which the NLRB has attempted to determine where the Act lands on the pendulum between the: (a) employer’s interests in enforcing so-called “civility” policies, and (b) an employee’s freedom to engage in activities protected by the Act.
Confusingly, the NLRB has held that even when an employer’s facially neutral employment policy does not expressly restrict Section 7 activity, was not adopted in response to a protected activity, and has not applied to restrict a protected activity, the policy may still violate Section 8(a)(1) of the Act. Such a violation would occur if the employee “would reasonably construe the language to prohibit Section 7 activity.” Without sufficient regulatory guidance and clarity, an employer cannot adequately protect itself from an employee who may cleverly or unfairly “reasonably construe” language that violates the Act.
Until 2017, this “reasonableness” qualifier was enforced without substantial deference to objective circumstances, such as an employer’s legitimate interests in maintaining civility policies. This changed in the NLRB’s Boeing decision, in which the NLRB acknowledged the existence of special circumstances relative to the employer’s industry, work settings, and events specific to or resulting in the policy in question. Under Boeing, employers found some degree of stability in understanding the types or categories of policies that do not violate the Act.
However, following its invitation for public input (which was notably absent in Boeing), the NLRB changed course in its Stericycle decision. In Stericycle, the NLRB reemphasized a perception-based qualifier as to an employee’s “reasonable” interpretation of a workplace policy and paid particular attention to whether or not an “economically dependent” employee could interpret a policy to restrict Section 7 rights. The decision was a drastic shift in the NLRB’s position on the pendulum because it replaced the NLRB’s use of “categories” of acceptable rules in favor of a case-by-case approach that is contingent on disparate interpretations.
Poised to abandon the precedent it set in Boeing, the NLRB quickly applied the new elements and standards it laid out in Stericycle to Starbucks’ “How we communicate” policy.
Although Starbucks’ policy was facially neutral and included common requirements that its employees practice “professional and respectful” behavior, contained a uniform dress code, and required attendance at HR meetings related to employee benefits, the NLRB determined that Starbucks’ application of these policies created opposing interpretations as to the policy’s true meaning. According to the ruling, Starbucks’ selective implementation of its policies and certain language within its policy suggested there could be negative consequences for union activity. This resulted in the NLRB finding that Starbucks’ policy was “overly broad, vague, and can [be] reasonably construed to intrude on Section 7.” Of note, the NLRB imposed a significant burden of proof on Starbucks, requiring it to demonstrate that it would be “unable” to advance its legitimate interests with a “more narrowly tailored rule.” The impact of a burden of this sort cannot be understated as applied to workplace policies because each employer policy may now be rendered unenforceable if a less “restrictive” alternative is available.
In sum, recent NLRB cases reflect a substantial shift in the legality of workplace “civility” policies that “could” be interpreted to limit union activity and involvement. Further, the NLRB cases serve as a great reminder that employers need to periodically review their handbooks and update the handbooks accordingly. Any such updates should narrowly tailor policies to promote enforceability and hedge against potential contests that a policy violates the Act.
This article first appeared in the January 2024 Issue of Dallas Bar Association Headnotes.