The Obama Board did not pull any punches when it came to analyzing the lawfulness of workplace rules. Still, as previously blogged about here, a more balanced approach to workplace rules may – hopefully – be on the horizon. On October 19, 2017, the ALJ in Green Apple Supermarket of Jamaica, Inc., issued a decision wherein he found, among other various Section 8(a)(1), (3), and (5) violations, that the employer did not violate Section 8(a)(1) by maintaining and promulgating overly broad texting and confidentiality rules. The ALJ found the following two rules lawful:
- “All documents are considered confidential and the sole property of Green Apple Supermarket and are not to be distributed or taken off the premises. There is to be no copying, faxing or photographing of documents. Failure to comply may result in dismissal and legal action.”
- “Texting and playing electronic games is strictly prohibited and will result in a warning: 3 warnings will result in a dismissal.”
In doing so, the ALJ reasoned that these two rules did not fall victim to the Board’s overly broad interpretation of what constitutes an illegal workplace rule under its Lutheran Heritage standard. Specifically, the ALJ held these rules did not violate the first, and most expansive, prong of Lutheran Heritage, i.e., “employees would reasonably construe the language to prohibit Section 7 activity.” The ALJ found that the record was devoid of evidence “as to how and in what manner these rules affected the employees from exercising their Section 7 rights.” The ALJ relied on the fact that the rules were in place before the employer was unionized and that the General Counsel failed to show how they were applied to coerce, interfere, or restrain employees’ rights under the Act.
Moving forward, although this ALJ decision is nice to see among the majority of administrative and Board decisions that find workplace rules unlawful, employers must still be mindful of implementing broadly worded and vague rules. Employers need to be cautious when using certain words (e.g., “all”) and are advised to provide context and examples when constructing their rules to demonstrate that they are not intended, nor are they trying, to prohibit employees from exercising their rights under the Act. Presently, Lutheran Heritage is still the law of the land and whether employees “would reasonably construe” rules to restrict their rights under Section 7 is still the incredibly broad employee-friendly standard workplace rules are generally analyzed under.
Ideally, this Republican-controlled Board will issue a decision that appropriately balances the interests of both sides sooner rather than later. Perhaps something along the lines of Board Chairman Philip A. Miscimarra’s 2016 William Beaumont dissent where he proposes adopting a balancing approach that considers an employer’s justifications in promulgating a workplace rule. At this point, however, our only option is to wait and see. So stay tuned.