Personal Conduct Policy Ruled Overbroad

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The National Labor Relations Board (NLRB) continued on its quest to knock overbroad language out of employee handbooks in an April 2, 2014, decision involving a transit company. The board found that a personal conduct handbook policy was worded too broadly and impinged on employees’ right to protected concerted activity.
 
The personal conduct rule prohibited “discourteous or inappropriate attitude or behavior to passengers, other employees or members of the public, as well as disorderly conduct during working hours.”
 
This language was unlawfully overbroad, the board concluded. It noted that the rule is similar to one prohibiting the “inability or unwillingness to work harmoniously with other employees,” which the NLRB struck down in 2 Sisters Food Group Inc., 357 NLRB No. 168 (2011).  
 
“The board found this rule in 2 Sisters ‘sufficiently imprecise that it could encompass any disagreement or conflict among employees, including those related to discussions and interactions protected by Section 7’ ” of the National Labor Relations Act, which covers protected concerted activity among employees.
 
“Here, as in 2 Sisters, faced with the ‘patent ambiguity’ in the phrase ‘inappropriate attitude or behavior … to other employees,’ employees ‘would reasonably construe the rule’ as limiting their communications concerning employment.”
 
But the board OK’d policy language prohibiting “profane or abusive language where the language used is uncivil, insulting, contemptuous, vicious or malicious.”
 
Stealing Prohibition
 
Looking at other handbook provisions, the board found that it was fine for the company to prohibit employees from “using company property for activities not related to work anytime,” disagreeing with an administrative law judge (ALJ) that the language was overbroad.
 
The ALJ thought “using company property” might be construed to encompass a physical presence in nonworking areas where employees could lawfully engage in union and protected activities during nonworking time.
 
The NLRB disagreed, saying “employees would recognize that the rule’s ban on the use of company property for nonwork activities refers to theft or other misappropriation of property, and would not reasonably construe the rule as covering protected activity on the facility premises.”
 
Oral Access Restrictions
 
But the board concluded that orally promulgated access restrictions were unlawful.
 
The union was seeking to organize bus mechanics in the Phoenix facility of First Transit Inc. The union already represented the company’s bus drivers, fuelers and cleaners there.
 
The company issued a rule prohibiting its mechanics from meeting with union representatives anywhere on the facility premises at any time. That rule was struck down because some union representatives were company employees, not union employees.
 
First Transit unlawfully terminated a meeting in the bus drivers’ break room between off-duty mechanics and three union representatives, one of whom was a bus driver and union officer.
 
The rule and shutting down the meeting were unlawful because they interfered with the right of the company’s employees who were also union representatives to organize on the facility premises at appropriate times and in appropriate places, and the right of other employees to participate in this activity.
 
More Overbroad Rules Prohibited
 
The board’s order prohibited the company from maintaining other overbroad rules, including ones that prohibit:
 
  • Disclosure of “any company information,” including wage and benefit information.
  • Making statements about a work-related accident “to anyone except the police or company officials.”
  • Making “false” statements concerning the company. The policy instead should have prohibited “maliciously false” statements, not merely false ones.
  • Participating in “outside activities that are detrimental to the company’s image or reputation, or where a conflict of interest exists.” The ALJ stated, and the board agreed, “it would not be unreasonable for employees to suppose that such outside activities as public union rallies, informational picketing or public expressions of workplace dissatisfaction would, in the respondent’s view, fall into ‘detrimental’ or ‘conflict’ of interest categories.” So the language chilled participation in protected concerted activity.
  • Being “present at a company location while not performing authorized services or without express permission.” A rule that requires permission before engaging in protected concerted activities on workers’ free time and in nonwork areas is unlawful, the ALJ noted, and board agreed.
  • Posting, circulating or distributing written or printed material without authorization from the manager. The ALJ observed that requiring preauthorization to disseminate any written material “clearly infringes on employees’ right to distribute union or other protected literature on their employer’s premises during nonwork time in nonwork areas,” another portion of the ALJ’s decision that the board affirmed.
 
This decision is First Transit Inc. and Amalgamated Transit Union Local #1433, AFL-CIO, 360 NLRB No. 72 (2014).
 
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
 
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