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eLABORate: The NLRB Continues To Take Expansive View of Section 7 Rights in First Transit, Inc. Decision

April 07, 2014

On April 2, the National Labor Relations Board (the “NLRB”) issued a decision finding that a rule prohibiting discourteous behavior placed an unlawful restriction on employee’s rights under the National Labor Relations Act (“NLRA”). Section 7 of the NLRA protects employees’ rights to engage in “concerted activities” for “mutual aid or protection.” Section 8 of the NLRA prohibits employers from interfering with or restraining employees’ rights under Section 7. Protected concerted activities include discussions between (or on behalf of) two or more employees about work-related issues, including pay, safety concerns or working conditions. An employee’s activity may only be considered “concerted” if it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries, Inc., 268 N.L.R.B. No. 73 (1984). A hot topic with the NLRB has been whether employee handbook provisions governing employee behavior unlawfully restrict employees’ Section 7 rights. See Broad 'At-Will Employment' Disclaimers Can Violate The National Labor Relations Act and NLRB Issues Its First Social Media Decision.

In First Transit, Inc., 360 N.L.R.B. No. 72 (4/2/14), the NLRB reviewed various provisions of First Transit’s employee handbook, noting that “the determinative test of legality . . . is whether employees would reasonably construe the language of the challenged rule to prohibit protected Section 7 activity.”

The NLRB did find that a few of the employee handbook rules passed muster under Section 7. Disagreeing with the ALJ who issued the decision on review, the Board found a rule prohibiting employees from “using company property for activities not related to work anytime” in the “stealing/theft” section of the handbook would not be reasonably construed as encompassing protected activity. Due to the context of the rule, it was clear that First Transit was seeking to prohibit theft and misappropriation, not the use of First Transit’s real estate for protected union organizing activities.

The NLRB also found that a prohibition on “poor work habits including loafing, wasting time, loitering, or excessive visiting” was not unlawful. Employees would not reasonably construe this rule as forbidding protected activity when they were not on working time.

However, the NLRB found that one portion of a personal conduct rule did violate Section 7. The first bullet point of this three-bullet point rule prohibited “[d]iscourteous or inappropriate attitude or behavior to passengers, other employees, or members of the public. Disorderly conduct during working hours.” According to the NLRB, this rule was ambiguous and an employee could reasonably construe it as limiting communications among co-workers concerning employment.

First Transit asserted that a savings clause in its employee handbook should shield it from liability. The company’s “freedom of association” clause stated 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.” Although the NLRB agreed that an employer’s notice to employees advising them of their rights under the NLRA could clarify an otherwise ambiguous and unlawful rule, this policy was not sufficient to do so. First, the policy was too narrow because it focused on union organizing rights, not the other rights protected by Section 7. Second, the association policy was not prominently placed, and it was not placed on a page near the provisions at issue, nor did it reference such policies.

The appellate courts have yet to address the NLRB’s broad view of Section 7 rights. Until a court addresses these issues, employers, whether unionized or not, should review their policies, particularly personal conduct rules.