The National Labor Relations Act (NLRA) protects the employee right to engage in “concerted activities for the purpose of . . . mutual aid or protection.” This includes not only the right to support a union, but also simply the right of employees to converse among themselves on issues affecting their employment. Consequently, any workplace rule explicitly infringing on this right, as well as any rule applied so as to cause such infringement, can be held unlawful. For example, if employees regularly get together before or after work, during which gripes and grievances (or unions) can be discussed, a workplace rule restricting these gatherings will generally be held unlawful.

Facially neutral rules which do not explicitly prohibit concerted activities, pose a special problem. Under previous administrations, the National Labor Relations Board struck down a wide range of such rules, if the rule in question could be “reasonably construed” by employees to discourage them from concerted activities. In a 2016 case Beaumont Hospital, the Board struck down a rule calling for “harmonious interactions and relationships,” while also prohibiting “negative or disparaging comments” aimed at other employees. Philip Miscimarra issued a dissent, stating there was no evidence “that the requirement of ‘harmonious’ relationships actually discouraged or interfered with NLRA-protected activity.” Moreover, “All employees in every workplace aspire to have ‘harmonious’ dealings.”

Under the current administration, the Board reversed Beaumont Hospital this past December. Following Miscimarra’s Boeing Company opinion, the Board will now give significantly more weight to the “business justifications” asserted for facially neutral rules.

What does this mean for you? While this will continue to be balanced against “invasions of employee rights,” and will involve fact-intensive, case-by-case decisions, employers can now look forward to more favorable rulings from the Board in this area of concern. Employers should keep their ears open for changes and new decisions, and consult Stokes Wagner with any concerns regarding infringement on the NLRA.

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