You Can’t Require Positivity

Question

Apparently it’s unlawful to ask employees to maintain a positive workplace. At least, that’s the National Labor Relations Board’s (NLRB) view of it.

The NLRB board threw out a provision in T-Mobile’s employee handbook that required workers “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships.”

According to the ruling, forcing workers to be positive all the time infringes on their rights to organize, protected by Section 7 of the NLRA. And employers cannot prevent workers from organizing.

Just a week later, the NLRB shot down another company’s employee handbook that prohibits employees from engaging in conduct that’s offensive to other employees. According to the NLRB, the rule “is not accompanied by any other descriptive language that would help employees interpret what types of ‘offensive’ conduct the rule is targeting.”

So what can be learned? “Avoid the temptation to draft broad statements and instead draft provisions under the purview of whether an employee would reasonably construe the provision … limits their Section 7 rights,” attorneys Thomas Chibnail and John Hasman write in National Law Review.

Court Strikes Down Controversial NLRB Poster Requirement

This issue has been kicked back and forth in the court system in the last couple of years. There finally appears to be some closure, much to the relief of America's business community. The Hill reports:

Industry groups, which quickly challenged the rule after it was issued, cheered the ruling. Jay Timmons, the president and chief executive of the National Association of Manufacturers, pledged to remain vigilant against the “rogue” NLRB.

“The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate,” Timmons said in a statement. “The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist.”

Judge A. Raymond Randolph, who wrote the decision for the U.S. Court of Appeals for the District of Columbia, suggested the rule was a clear violation of free speech rights because the government “selected the message and ordered its citizens to convey that message.”

Freedom of speech, Randolph wrote, “includes both the right to speak freely and the right to refrain from speaking at all.”

The court did not rule on whether the union poster regulations were constitutional, deciding only that the NLRB exceeded its legal mandate…

Business groups argue the NLRB has favored unions under President Obama's administration and pointed to the poster rule as one of the most egregious examples.
 
“Today’s decision is a monumental victory for small-business owners across this country who have been subject to the illegal actions of a labor board that has consistently failed to act as a neutral arbiter, as the law contemplates,” Karen Harned, executive director of National Federation of Independent Business's Small Business Legal Center, said in a statement.

The advocacy group National Right to Work called the NLRB’s poster rule an “outrageous effort to transform itself into a taxpayer-funded arm of union organizing.”

This is the second major court defeat for the NLRB in recent weeks. The same appeals court ruled in January that Obama’s recess appointments to the board were illegal and therefore invalid. The independent agency is tasked with prosecuting unfair labor practices and conducting union elections.

“Stopping the NLRB’s burdensome agenda of placing itself into manufacturers’ day-to-day business operations is essential to preventing further government-inflicted damage to employee relations in the United States,” Timmons said.

Make Sure NLRB Can’t Come Down on Your Social Media Policy

As if you needed more to deal with from the National Labor Relations Board, be sure that your social media policy is compliant with NLRB standards. Ragan offers this useful article, stating what you should keep in mind and how the NLRB has targeted one wholesale giant.

Here’s the deal. If a work rule has the potential to reasonably chill an employee’s right to organize or bargain collectively, it’s unlawful. Employees have the right to complain publicly if they think their employers’ labor practices are unfair.

So if I complain on Linkedin that someone else is making more than I do, and it’s unfair, that’s a protected activity. If you fire me for disclosing confidential salary information, you’re going to lose in court. It’s as simple as that, and if your social media policy prohibits it, you are opening your company up to a NLRB action.

Your social media policy cannot limit free speech

You don’t have to reference the National Labor Relations Act to violate it. If your social media policy uses language that restricts employees from using social media to "damage the Company, defame any individual or damage any person’s reputation" the NLRB sees it as restricting labor’s protected rights, because that social media policy it could have a chilling effect on what is seen a free-speech issue.

On the other hand, if the restrictions are subordinated to a clause on sexual misconduct or racial harassment, it would be allowed, as employees would be able to appreciate the rule in context. It’s the overly broad restrictions (often wrapped into social media policy) that the NLRB opposes. The best social media policies will be more exacting in their language. 

McGovern & Heritage Agree: Employee Free Choice Act Light on “Free”

James Sherk of the Heritage Foundation offers his assertion that the proposed Employee Free Choice Act effectively ends worker privacy and hinders their ability to make personal choices regarding union membership. He argues that while EFCA could be a boon to union dues, it would help little else and deliver a crushing blow to worker freedom:

Organized labor’s highest legislative priority is the deceptively named Employee Free Choice Act (EFCA). EFCA replaces secret ballot elections—the method by which most workers join unions—with publicly signed union cards. While eliminating secret ballots is extremely unpopular, many EFCA support­ers argue that the legislation merely gives workers the choice between organizing using secret ballots or pub­licly signed cards. This argument is false; nothing in the legislation gives workers any control over union organizing tactics. Though EFCA still allows for secret ballot elections under unusual circumstances, stan­dard union organizing tactics ensure that publicly signed union cards will dominate the recognition pro­cess. As a result, the misnamed Employee Free Choice Act effectively eliminates secret ballot elections.

Former Democratic Senator and presidential nominee George McGovern also penned this column for the Wall Street Journal earlier this month:

To my friends supporting EFCA I say this: We cannot be a party that strips working Americans of the right to a secret-ballot election … To fail to ensure the right to vote free of intimidation and coercion from all sides would be a betrayal of what we have always championed.