May 21, 2024
Does Your Professional Conduct, Respectful Communications, or Civility Policy Violate the NLRA?
An employer maintained two policies regarding workplace conduct. One was “How we communicate: Partners are expected to communicate with other partners and customers in a professional and respectful manner at all times.” The other was, “Commitment to a respectful workplace: We treat each other with dignity and respect, and connect with transparency.” The guide that contained these policies also had a “savings clause” that read, “the policies in the guide should not be interpreted to interfere with employee communications regarding terms and conditions of employment.” Sounds pretty straightforward, yes? Keep reading.
After receiving corrective action regarding her alleged disrespectful conduct towards more than one supervisor, on more than one occasion, and in violation of these policies, an employee was fired. This employee had also been leading a union organizing effort. The employee filed a claim with the National Labor Relations Board (NLRB) claiming the employer’s policies and firing her for disobeying those policies violated the National Labor Relations Act (NLRA), including her Section 7 rights – to act in concert for employees’ mutual aid and protection regarding wages, hours, and conditions of employment.
The NLRB agreed! The Board found the two policies were “overbroad” and violated the NLRA. Really? How or why did the NLRB find these to be overbroad?!
With regard to the policy, the Board writes, “Respondent’s rules requiring employees to limit themselves to ‘respectful’ communications with other partners, including supervisors and managers, would reasonably tend to chill employees’ exercise of their rights under the Act and…is presumptively unlawful.” (emphasis added)
With regard to the savings clause, the Board explained it “would provide, at best, cold comfort to employees.” Why? In the Board’s opinion, the savings clause:
- did not identify either of the challenged rules and was not repeated in proximity to either rule – which appear in the guide roughly 20 pages and 40 pages away from the savings clause;
- only acknowledges the employees’ rights to engage in communications regarding terms and conditions of employment, not the full panoply of rights under the Act and, in particular, does not mention unions or employees’ right to
engage in union activity; and - the same page that includes the savings clause also states that management can change anything in the guide at “anytime, with or without notice,” and can also “separate a partner from employment at any time, with or without notice.”
The Board directed the employer to (1) reinstate the employee; (2) award backpay; (3) expunge the corrective action from her HR file; (4) rescind its overbroad policies; (5) train employees, supervisors and managers on employee rights under the NLRA; (6) and more.
Tip: Balancing a demand for workplace civility without violating the NLRA is a fine line. The NLRB seems to accept employers’ demands for civility with coworkers. When that demand extends to supervisors or managers, the Board seems to find that has a “chilling” effect upon employees’ ability to exercise their Section 7 rights. Talk to your company’s legal counsel about crafting a policy that strikes a balance between the setting your expectations for workplace civility, recognizing employees’ rights to be free from harassment, bullying, discrimination, and exercising their rights under Section 7 of the NLRA.
