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Does the NLRA really Protect A Worker's Right to Be Rude? The NLRB Thinks So!

By Martha J. Zackin

What a year it’s been for the National Labor Relations Board! Under the guise of preserving workers’ rights under Section 7 of the National Labor Relations Act, which includes the broad right “to engage in [ ] concerted activities for the purpose collective bargaining or other mutual aid or protection,” the NLRB has:

• Invalidated a policy prohibiting employees from making statements that “damage the Company, defame any individual or damage any person’s reputation” was overly broad, in that it would “reasonably tend to chill employees” in the exercise of their Section 7 rights to protest working conditions (read more);

• Found that a company’s blanket policy of requesting participants in an internal investigation to keep the investigation confidential improperly infringes on employees’ Section 7 rights (read more);

• Weighed in on employers’ social media policies (read more and more); and

• Otherwise sought to expand its considerable influence over both unionized and non-unionized workplaces (read more).

Recently, in Karl Knauz Motors, Inc., the NLRB expanded its protection of workers’ Section 7 rights yet again, finding that a company’s policy, whereby employees were expected to be courteous, was overbroad and invalid.  The specific policy at issue stated that:

  • Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the [Company].

Because there were no disclaimers in the handbook that explicitly allowed discourteous behavior when such behavior was used to object to or criticize working conditions, the NLRB found that the mere existence of the policy constituted an unfair labor practice.

The NLRB will continue to dissect employer policies, as it continues to seek to protect workers’ right to complain.  Policies and handbooks should be reviewed carefully, and revised if they could be interpreted in a way that the NLRB might perceive as “chilling” employees’ right to engage in concerted protected activity.

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Martha Zackin