August 8, 2022

Volume XII, Number 220

Advertisement
Advertisement

August 08, 2022

Subscribe to Latest Legal News and Analysis
Advertisement

National Labor Relations Board Issues Yet Another Decision Finding Employer’s Work Rules Overly Broad

The National Labor Relations Board (“Board”) recently issued a decision that serves as a reminder for both union and non-union employers that the Board continues to take an aggressive stance on seemingly innocuous employment policies that the Board believes may chill an employee’s exercise of his or her Section 7 rights under the National Labor Relations Act (the “Act”).

The Employer in Component Bar Products, Inc., 364 NLRB No. 140 (Nov. 8, 2016), maintained a personal conduct and disciplinary action policy that prohibited, among other things: (1) insubordination or other disrespectful conduct; and (2) boisterous or disruptive activity in the workplace.  The Administrative Law Judge (“ALJ”), applying the test set out in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), found that these work rules were facially unlawful because employees would reasonably construe these rules to prohibit the exercise of their Section 7 rights under the Act.

In regard to the rule that prohibited “insubordination or other disrespectful conduct,” the ALJ, relying on prior Board precedent, found that this rule would impermissibly prohibit employee complaints about supervisors and working conditions that “supervisors may perceive as an affront to their authority.”  Rules that solely prohibit insubordination, however, have been upheld by the Board.

In regard to the rule that prohibited “boisterous or disruptive activity in the workplace,” the ALJ was concerned that this rule would prohibit an employee’s right to engage in a work stoppage, as well as other activity permitted under Section 7 of the Act.  Further, the ALJ found that unlike similar rules prohibiting disruptive activity that have been upheld in the past, the Employer’s rule here did not include any example or limitations that clarified the scope of the rule.

In affirming the ALJ’s decision, a 2-1 majority of the Board stated that it agreed with the ALJ’s application of the Lutheran Heritage test to the work rules at issue.  Thus, it is clear that the Board continues to focus on the “chilling effect” that broadly drafted work rules may have on an employee’s exercise of his or her Section 7 rights.  Although it is likely that a Republican-led Board under President Trump will overturn decisions such as this one, this will take time and Regional Directors will continue to enforce Component Bar Products and decisions like it for the foreseeable future.  Accordingly, we recommend that employers conduct a close review of their current employment policies to ensure that they cannot be construed as limiting an employee’s Section 7 rights.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VI, Number 348
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Ryan J. Munitz Labor and Employment Attorney Sheppard Mullin Law Firm
Associate

Ryan Munitz is an associate in the Labor and Employment Group in the firm’s Washington, D.C. office. 

Areas of Practice

Ms. Munitz's practice focuses on labor and employment counseling, particularly regarding compliance with the National Labor Relations Act. She specializes in the Railway Labor Act and has extensive experience advising employers during union organizing campaigns regarding compliance with the RLA. Ms. Munitz has experience representing companies in labor arbitrations and labor negotiations, and handling other traditional labor matters. She...

202.469.4939
Chidera N. Anyanwu, Sheppard Mullin, Labor Policy Lawyer, Union Employment Attorney
Associate

Chidera N. Anyanwu is an associate in the Labor and Employment Practice Group in the firm's Washington, D.C. office.

  • J.D., The George Washington University, Law School, 2016, with honors

  • B.A., The George Washington University, 2012, cum laude

202-747-2651
Advertisement
Advertisement
Advertisement