NLRB General Counsel Advocates Change to Standard for Review of Employee Conduct Policies

NLRB General Counsel Crystal Carey has directed NLRB regional staff to urge the Board to change the standard by which employer rules on employee conduct are analyzed. Two cases currently on appeal to the Board involve allegations that Atlassian and Honeywell maintained unlawful employee conduct rules. Under the present legal standard, articulated in the Stericycle decision handed down by the Biden Board, rules of conduct are reviewed not objectively, but from the perspective of an employee who is contemplating union organizing, which makes conduct rules legally vulnerable. In fact, at the trial level for both cases, NLRB prosecutors successfully invoked Stericycle, and the Administrative Law Judges applied the Stericycle decision. That was then and this is now, and the new General Counsel is asking the Board to scrap Stericycle and consider employer rules through a more balanced lens.

As argued in the General Counsel’s appeal briefs, the existing theory that rules must be interpreted with unionizing in mind jeopardizes facially neutral rules, such as those requiring employees to interact at work in a professional and respectful manner, because unionizing assertedly requires confrontation. Under this theory, an employee looking to unionize may think these rules ban all unionizing activity. On the other hand, viewed from an objective standpoint, rules of this nature are meant to ensure order and safety in the workplace and not to squelch lawful union activity.

The General Counsel’s position is that allowing union organizing activity does not prohibit an employer from ever requiring orderly conduct in the workplace. On appeal, the Board attorneys are urging the Board not to accept “the fiction that employees are incapable of exercising their Section 7 rights without occasional resort to a ‘moment of animal exuberance’,” citing SCOTUS’s 1941 decision in Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc. Now the Board’s attorneys criticize Stericycle for reading common, facially neutral workplace rules in a vacuum by adopting an excessively broad interpretation of union or collective activity. The Board’s attorneys argue that the Stericycle test fails to acknowledge employers’ duties to maintain safe environments and prevent harassment. Whether a rule in theory might by chance be perceived to prohibit all manners of controversial conduct inherent in unionizing should not mean that employer rules designed to encourage a harmonious and respectful workplace should be tossed.

Under the General Counsel’s approach, workplace conduct rules must be read from the perspective of “an objectively reasonable employee who is aware of his legal rights, but who also interprets work rules as they apply to the everydayness of his job. The reasonable employee does not view every employer policy through the prism of the NLRA.” With the current majority of three Republican members on the Board, the Stericycle test will likely fall and an objectively reasonable person standard will return.

For additional information, contact Genova Burns Partners and Labor Law specialists, Edward J. Bonett, Jr., Esq. via email here, or Patrick W. McGovern, Esq. via email here.