Labor Board case Brings

Handbooks to Center Stage


Some Policies can be

Automatic ULPs


But May Be OK to Sack

Worker for Violating Policy 

            A significant piece of the non-union culture abroad in HR management since the late 70s has been the adoption of surrogate collective bargaining agreements, i.e., employee handbooks.  One thing that gets under the skin of the National Labor Relations Board is an employer (non-union or otherwise) that publishes handbook policies infringing on the Section 7 right to protected concerted activity.  This is the activity that is “protected” because it involves the terms and conditions of employment and that is “concerted” because it involves two or more employees. Employee handbooks that are interpreted as “overbroad” in this respect are illegal. An overbroad policy restrains employees from showing up at “the property” when not on duty, or prohibits employees from discussing their compensation. Perhaps the most litigated handbook provision is the one that prohibits solicitation or distribution during “work hours”; the correct term for such a policy is “working time.”

             Recently the NLRB held that a policy forbidding off-duty employees from being on company property was overbroad and violated the law, but went on to uphold the employer’s termination of an employee for violating the policy.  Continental Group, Inc., 357 NLRB __, No. 39 (2011). He was a front desk employee who while on leave hung around his company’s condominium high-rise to discuss his personal problems (domestic) with residents, who found it annoying.  The Board reasoned that even if the rule was wrong, since off-duty employees cannot be restrained from visiting parking facilities or other company property adjoining the actual site for production or other work, the complainant was not engaging in protected concerted activity. 

            In the past the Board has found that a policy against “negative conversations” about managers was improper, and that an overly broad confidentiality provision was illegal because it could be read by the average employee to forbid disclosure of wage rates.  The Board has even set aside elections that the employer won because of overly broad no-solicitation rules (weighing the factor of the last minute timing of the publication against the employer). 

            You should assure that your internal publications such as handbooks and manuals do not state a policy or rule in such a manner that its scope collides with protected concerted activity.