End the myopic focus on Section 7

The National Labor Relations Act's Section 7 guarantees employees the statutory right to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. Work policies that explicitly prohibit or unduly restrict an employee from engaging in Section 7 conduct foreseeably restrain employees in the exercise of their statutory rights and are, therefore, facially invalid. So it makes perfectly good sense that the mere existence of an invalid, prohibitory work rule qualifies as an actionable unfair labor practice in violation of Section 8(a)(1) of the NLRA.

But that same foreseeable restraint on the exercise of statutory rights does not flow from a generic work rule that is silent as to Section 7 conduct and seeks to address employee activity falling outside of Section 7. These facially neutral rules let employees know what they may reasonably and lawfully expect of their employer and what their employer expects of them, without regard to their Section 7 rights. They also serve an important prophylactic purpose by giving effect to an employer's compliance with federal and state law. Accordingly, such neutral work policies, having nothing to do with Section 7 conduct and not seeking to restrict protected concerted activity, should be presumed lawful on their face. Unfortunately, the current National Labor Relations Board has not seen it that way.

In Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the board addressed the lawfulness of such facially neutral rules, holding that they could still violate the NLRA if employees could reasonably construe the rules' text to restrict conduct protected by Section 7. In recent years, the NLRB has seized upon Lutheran Heritage to declare countless facially neutral work rules unlawful based upon certain board members' subjective belief that a "reasonable employee" might read an employer's generalized work rule as reaching and restricting Section 7 conduct.

The problem with Lutheran Heritage's so-called "reasonable employee" standard is that it is no standard at all. Rather, it is a situational, amorphous and subjective non-standard - one that invites arbitrary, capricious and inconsistent decision-making by the NLRB while also denying employers seeking to be compliant with the NLRA a bright line to use when attempting to draft lawful facially neutral work rules.

A recent case in point is the board's decision in William Beaumont Hospital, 363 NLRB No. 162, decided April 13, where the board invalidated facially neutral work rules at an obstetrics hospital prohibiting "conduct that impedes harmonious interaction and relationships," "verbal comments or physical gestures that exceed the bounds of fair criticism" and "negative or disparaging comments about the moral character or professional capabilities of an employee or physician to employees." These work rules ensured the maintenance of an efficient workplace for the purpose of providing life-saving medical care. Moreover, these rules said nothing whatsoever about employees' Section 7 conduct. Nor did they seek to prohibit or restrict the exercise of Section 7 rights, and yet that did not stop board members Kent Hirozawa and Lauren McFerran from criticizing the provisions for their ambiguity and overbreadth. The board unnecessarily and excessively parsed through the text of the work rules in search of possible Section 7 effects to find that the provisions might be read by a "reasonable" worker as prohibiting expressions, discussions and interactions by and among employees concerning working conditions. Accordingly, the mere maintenance of these important work rules, which were clearly intended to achieve a civil and professional workplace for the purpose and having nothing to do with union or protected concerted activities, was declared unlawful and an actionable unfair labor practice.

Countering the William Beaumont majority was the real world dissent of board member Philip Miscimarra, who highlighted the multiple defects inherent in the Lutheran Heritage non-standard and advocated its abandonment. Thus, as noted by Miscimarra, Lutheran Heritage suffers from "a single-minded consideration of NLRA-protected rights, without taking into account the legitimate justifications" that may exist for a facially neutral work rule outside the NLRA. This myopic focus on Section 7 without due regard to the many other legitimate considerations that actuate the use of such rules is contrary to U.S. Supreme Court precedent and to the board's own cases. Adtranz ABB Daimler v. NLRB, 253 F.3d 19 (D.C. Cir. 2001).

Likewise, Lutheran Heritage stems from multiple flawed premises that are contrary to the NLRA and the law. For example, without any actual proof, Lutheran Heritage automatically and erroneously assumes that just because a facially neutral rule may be read as restricting Section 7 conduct, its existence has the same foreseeably restraining effect on protected activity as a facially invalid rule that actually prohibits such protected conduct. That is simply not the case. Indeed, even though the board's majority has seen fit to micro-scrutinize every facially neutral work rule's wording and punctuation, these rules are rarely, if ever, read by workers before they engage in Section 7 conduct. Additionally, the standard operates on the misguided notion that, unless employers correctly anticipate and expressly carve out every possible overlap with NLRA coverage from their otherwise benign work rules, employees are better served by having no generic work rules. Yet one can hardly suggest that it benefits employees to deny workers general guidance regarding what is required of them and what standards of conduct they can expect of their coworkers. Unfortunately, that is the unavoidable effect of Lutheran Heritage.

Furthermore, Lutheran Heritage invalidates many a facially neutral rule solely because the rule is ambiguously worded relative to the possible exercise of Section 7 rights, even though many of the ambiguities that are found in a rule are the direct result of ambiguity inherent in the NLRA and the complexities of its proper application to individualized work situations. Such impossible-to-achieve linguistic precision makes an employer's lawful cataloging of what is and is not permissible employee conduct a practical impossibility. Thus, it is no small wonder that Lutheran Heritage has defied all reasonable efforts at having it yield consistent and reliable outcomes, making it exceptionally difficult to apply and the source of enormous challenges for the Board and courts and the cause of immense uncertainty and litigation.

Based on these considerations, it is high time for the NLRB to retire its Lutheran Heritage decision.

Mark Ross is a principle in the San Francisco office of Jackson Lewis PC. He practices in traditional labor law and employment law.

Iris Kokish is an associate in the San Francisco office of Jackson Lewis PC. She practices in traditional labor law and employment law.