On December 18, TCF fellow Moshe Marvit published a commentary discussing the National Labor Relations Board’s December 14 revision of the joint employer standard, which was a dramatic setback for unions and collective bargaining. In what follows, Marvit continues with analysis of another important December 14 NLRB decision: one that restricts workers’ ability to document collective action and unlawful labor conditions.
On December 14, as part of a package of pro-employer decisions that overruled significant National Labor Relations Board (NLRB) precedent with no public input or reason, a split Labor Board provided employers a guide to chilling workers’ labor rights and getting away with it. At issue in the case (Boeing Co.) was whether the company’s no-photography rule was overbroad and interfered with employee’s labor rights, but the case ended up being about so much more. The case should have been an easy one, because the Board had already ruled on this issue several times, stating as recently as 2015 that photographing and videotaping is protected under the Act,
when employees are acting in concert for their mutual aid and protection and no overriding employer interest is present. Such protected conduct may include, for example, employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent application of employer rules.
Therefore, because a blanket no-photography rule could be interpreted by a reasonable employee as interfering with her labor rights, it should have been found to be overbroad and unlawful. However, when the case went up on appeal to the Labor Board, the current conservative majority used it as a vehicle to overturn the Bush-era precedent that set the test for determining when a work rule was unlawful.
Under the 2004 Lutheran Heritage standard, the Labor Board would find that a workplace rule was unlawful if “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Section 7 rights are the core of the Act. They protect workers’ rights to organize, bargain collectively, and engage in concerted activities for mutual aid or protection (or refrain from any of those actions). Every federal court of appeals that had considered the Lutheran Heritage standard affirmed it. There was no solicitation by the Labor Board of public comment where people expressed problems with the standard. And none of the parties in the Boeing case asked the Labor Board to revisit the Lutheran Heritage standard.
Still, largely cribbing from a 2016 dissent by Member (and now-Chairman) Miscimarra, the majority used the Boeing case to create a new standard that gives employers enormous leeway in creating and maintaining work rules that chill workers’ labor rights. Going forward, the Board will now look at two things: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.” Then, in a bizarre move, the majority provided three categories—a sort of green light, yellow light, red light system—for when work rules are always permissible, sometimes permissible, and never permissible. In doing so, the majority gave employers what dissenting Member Pearce called “a how-to manual for employers intent on stifling protected concerted activity before it begins.”
One of the major problems with the majority’s categorization scheme is its “Category I,” which includes rules that are always lawful. The majority writes that “examples of Category I rules are the no-camera requirement in this case, the ‘harmonious interactions and relationships’ rule that was at issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civility.” In stating this, the Labor Board has established that “civility” rules, no matter how broad or how they are stated, are always legal. Having a “harmonious interactions” or “civility” rule may seem like a non-controversial workplace rule, but it papers over the fact that labor and employment relationships are often tense, confrontational, and uncivil.
It’s true that many protected activities under the National Labor Relations Act could be perceived by management as “uncivil.” However, while banding together to demand higher pay or benefits, walking off the job in a strike, or carrying picket signs that accuse the boss of unfair treatment or greed may seem uncivil and unharmonious, they are absolutely within workers’ rights. Similarly, as dissenting Member McFerran points out, “Workers facing harassment or assault often have to act ‘uncivilly’ to protect their safety and their rights. Knowing that their employer has promulgated a work-place rule to make it crystal clear that raising a fuss can be a fireable offense hardly makes it easier on victims reluctant to speak up about assault or harassment.” As people scramble to pass new legislation to protect workers who face sexual harassment in the workplace, the NLRB just promulgated a new test to help silence these workers by giving employers a safe harbor in “civility.”
The NLRB’s new test for workplace rules will have long-lasting and significant consequences that will be difficult to document. Millions upon millions of American workers have handbooks or other workplace rules, and this decision provides employers broad cover to use those rules to deny workers a voice at the workplace. It will be hard to determine the effects of this change because workplace rules of civility will stop complaints before they arise by scaring workers with the possibility that their collective voice may be deemed “uncivil.”