NLRB shouldn’t invalidate facially neutral work rules

The National Labor Relations Board has long held that even the mere maintenance of a facially neutral work rule — one that does not explicitly prohibit or restrict union or protected concerted activity — violates Section 8(a)(1) of the National Labor Relations Act if employees would “reasonably construe” the rule to prohibit them from engaging in such protected conduct. Section 8(a)(1) prohibits an employer from interfering with, restraining or coercing employees from engaging in statutorily protected conduct. According to the board, the mere existence of such otherwise benign rules are unlawful because of the chilling effect that they are presumed to have on employees’ exercise of their statutory rights. Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).

The “reasonably construe” standard has spawned great confusion and extensive litigation and defied all reasonable efforts to apply and explain it. Looking at the board’s many decisions applying the standard, it is difficult reconcile board decisions that uphold some facially neutral rules but invalidate others. William Beaumont Hospital, 363 NLRB No. 162 (2016), slip op. at 15-16.

While a few appellate courts have rejected the board’s application of the “reasonably construe” standard to specific policies, T-Mobile USA v. NLRB, 16-60284 (5th Cir., filed July 25, 2017); Adtranz ABB Daimler-Benz Transportation v. NLRB, 253 F.3d 19 (D.C. Cir. 2001), no court of appeal has questioned the permissibility of the standard or whether Section 8(a)(1) can operate to ban all such facially neutral work rules simply because their otherwise neutral wording is so vague, imprecise or ambiguous as to lend itself to a possible reading banning protected activity. Instead, relying on the U.S. Supreme Court’s decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), the courts have deferred to the board’s administrative expertise and rubber stamped the standard as being a permissible reading of Section 8(a)(1). However, all of these appellate decisions plainly ignore the fact that facially neutral work policies/rules may constitute constitutionally protected speech and have never addressed whether the board’s “reasonably construe” standard unconstitutionally infringes on an employer’s First Amendment rights.

Nothing in the NLRA specifies what are and are not permissible work rules. Except insofar as a work rule is shown to actually interfere with, restrain or coerce employees in the exercise of their statutory rights, the board has absolutely no authority to regulate or police work rules. Moreover, an employer’s constitutional right to communicate to its employees its views with respect to unionization and the desirability of labor unions is firmly established, provided the employer’s communication contains no threat of reprisal or force or promise of a benefit. NLRB v. Virginia Electric, 314 U.S. 469 (1941); NLRB v. Gissel Packing, 395 U.S. 575 (1969). See also NLRA Section 8(c). Accordingly, an employer’s facially neutral work rule that is silent as to union or protected concerted activities, that contains no threat with respect to protected activities and that presumably speaks to some other colorably legitimate purpose is likely to qualify as expressive activity protected by the First Amendment.

A flaw that permeates the “reasonably construe” standard is that the illegality of a given rule is solely in the eye of the board’s members. That is, the board’s “reasonably construe” decisions are grounded exclusively on the words used in a rule and the meaning that the board’s members choose to ascribe to those words without any regard for how those words are actually used in the workplace and in the total absence of any evidence as to how they are actually understood by affected employees.

For example, in T-Mobile, 363 NLRB No. 171 (2016), without any supporting evidence and based solely on how the board members construed the text, the board recently enjoined a rule calling for employees to “maintain a positive work environment by communicating in a manner that is conducive to effective working relationships” because the board believed that employees would reasonably construe the rule as a restriction on their right to engage in discussions relating to working conditions protected by the act out of fear that the employer would deem such debate to be inconsistent with a “positive work environment.” The problem with this approach is that the board’s mere opinion as to how words can be construed is no substitute for proof as to how they actually are construed and does not establish the threat needed to place those words outside the protections of the First Amendment and Section 8(c). As the 5th Circuit noted in T-Mobile, and contrary to the board, a reasonable employee does not view every employer rule through the prism of the NLRA. Nor can the board presume improper interference with employee rights or a chilling effect needed to establish a violation of Section 8(a)(1) absent some evidence that employees actually read a rule to restrict protected conduct. And yet that is exactly what the board does when it enjoins a facially neutral work rule by application of the “reasonably construe” test.

Courts have yet to address the issue but, because the board’s “reasonably construe” test targets work rules based on their content, it is a content-based restriction on speech, meaning that the board’s current treatment of facially neutral rule is presumptively unconstitutional and subject to strict judicial scrutiny. Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Whether the “reasonably construe” standard can survive such scrutiny is an unanswered question, but one that probably need not be answered at this point because the test as now applied by the board is also unconstitutionally vague, i.e., it is a regulation of speech that gives an employer no fair warning of what is legally impermissible, threatens to enjoin what is protected speech based solely on ad hoc, subjective determination, thereby inviting arbitrary, discriminatory or overzealous enforcement and discourages the exercise first amendment freedoms. Cohen v. San Bernardino Valley College, 92 F.3d 968 (1996); Dambrot v. Central Michigan University, 55 F.3d 1177 (1995).

For all of these reasons, the board’s “reasonably construe” standard operates to burden employers’ constitutional right to promulgate facially neutral work rules. In prior NLRA cases, the Supreme Court saw fit to avoid similar First Amendment dilemmas by adopting a limited construction of act and reading the statute’s broadly written prohibitions as not reaching constitutionally protected conduct the board sought to regulate or enjoin. BE&K Construction v. NLRB, 536 U.S. 516 (2002); DeBartolo Corp. v. Building Trades, 485 U.S. 568 (1988); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). The same result should obtain in the case of Section 8(a)(1) and its application to work rules that do not explicitly prohibit or restrict union or protected concerted activity. For the purpose of avoiding the constitutional question raised by the “reasonably construe” test, the board and, if not the board, the Supreme Court should abandon the “reasonably construe” test and find that Section 8(a)(1) does not reach facially neutral work rules and that the mere maintenance of such otherwise constitutionally protected workplace policies does not violate the act.