Does Your Employer Have Illegal Rules on the Books?

On August 2, the National Labor Relations Board (NLRB), now controlled by Democratic appointees, issued a game-changing decision known as Stericycle. The ruling enables unions to effectively challenge company rules that intimidate or chill workers from engaging in protests, picketing, demonstrations, and other legitimate union activities.

Marvin Kaplan, the one dissenting Republican board member, bitterly complained that the new standard returns the board to “a bygone era... when the Board rarely saw a rule it did not find unlawful."

Stericycle, a Pennsylvania medical waste disposal company whose employees are represented by Teamsters Local 628, maintained handbook policies governing personal conduct, conflicts of interest, and confidentiality. The Board said the rules were illegal because they could reasonably deter workers from taking part in activities protected by Section 7 of the National Labor Relations Act.

Stericycle overturned the Labor Board’s 2017 Boeing decision, which allowed employers to maintain work rules even if they discouraged workers from taking part in union activities such as rallies, picketing, distributing handouts, wearing strongly worded buttons, or vigorously arguing with supervisors.

According to Stericycle, if a reasonably apprehensive worker could read a rule as banning or limiting union activity, the rule is illegal and must be withdrawn or rewritten to clarify that it does not apply to union activities. Discipline pursuant to an overbroad rule is illegal. An overbroad rule may not be maintained even if it has a “legitimate” purpose and even if it has never been enforced against union activity. An employee may not be disciplined for insubordination for ignoring instructions to obey an unlawful rule.

The new standard compels an employer to take “narrowing” measures regarding overbroad rules, such as issuing clear assurances that the rule does not apply to lawful union activities. Until that happens the rule is illegal and the employer cannot enforce it with warnings, suspensions, or discharges.

EXAMPLES OF ILLEGAL RULES

It may seem hard to believe but, in the absence of a narrowing clarification (for instance, an express notice that the rule does not apply to protected union activity, or a list of examples of wrongdoing that make clear that only serious misconduct is prohibited), the Board is likely to find the following rules unlawful—even if the rule has been on the books for years:

• No taking pictures of employer facilities
• No recording conversations with managers
• No sharing information with outside media
• No discussing wage rates with fellow employees
• No failing to work “harmoniously” with fellow workers or managers
• No disclosing company investigations
• No communicating with employees or supervisors in an unprofessional or disrespectful manner
• No taking part in activities that “adversely reflect” on the integrity of the company
• No personal phone calls outside meal and break periods
• No behaving in ways that “damage” the company’s reputation

ARE ALL EMPLOYER CONDUCT RULES ILLEGAL?

Stericycle does not make all rules of conduct illegal. For example, consider a rule banning assaults on supervisors.

The rule is lawful because no employee could reasonably conclude that it prevents him or her from taking part in a union activity. A rule banning weapons on the premises would also be lawful.

REVIEW ALL RULES

Almost every U.S. workplace is currently in violation of Stericycle, often to a pervasive extent. A union that wants to clean things up should review all company rules and policies. Requests for information should be submitted until the union is satisfied that no rules have been missed.

Each rule should be carefully analyzed under Stericycle. If one or more rules violate the law, the union could take it up with management, either one at a time, or all at once. Or it could file unfair labor practice (ULP) charges at the NLRB or, if it represents public employees, with the applicable state labor board.

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ULP charges should assert that overbroad rules violate Section 8(a)(1) and, if appropriate, 8(a)(3) (when discipline has been imposed). The charge might state: “The employer is interfering with, restraining, and coercing employees by maintaining or enforcing rules that restrict employees from taking part in concerted activities protected by Section 7 of the Act.”

TIMING

A particularly effective time to file ULP charges is when the union is negotiating a new contract. As part of its bargaining demands the union can insist that illegal rules be rescinded or rewritten. This could allow the union to claim that any subsequent walkout in support of its demands is an unfair labor practice strike with protections against permanent replacement of strikers.

Q&A: STERICYCLE

Q. Our employer has a ban on taking pictures inside or outside of their facilities. We produce airplanes for the U.S. military. Aren’t there legitimate security reasons for the rule?

A. Perhaps, but the rule may be overly broad. Unless it is narrowly clarified, many workers would read it as banning them from taking pictures to document unsafe practices or to prepare for grievances or arbitrations. If the company wants to retain the rule, it must give clear notice that it does not apply to union investigations or advocacy.

Q. Can an employer ban the use of cell phones on the job?

A. Yes, but only if it makes clear that the ban does not apply to calls to or from the union or to support a union activity.

Q. If a worker is fired for violating a work rule covered by Stericycle, would it be better to take the case to the NLRB or arbitration?

A. Until arbitrators become comfortable with enforcing Stericycle, workers are likely to have more success before an NLRB judge. A problem, however, is the NLRB “deferral” policy under which the NLRB instructs charging unions to take discipline cases to arbitration—with the caveat that if the arbitrator misapplies federal labor law, the union can come back to the NLRB for review.

Q. Does Stericycle apply in nonunion workplaces?

A. Yes. The NLRB has jurisdiction over non-union private-sector workplaces. A company rule, that, for example, requires workers to work “harmoniously” with other workers or management would be an unfair labor practice because it chills employees who might want to organize a union. A worker (or more likely an outside union) can file a ULP charge over the rule.

Labor attorney Robert M. Schwartz is the author of Just Cause: A Union Guide to Winning Discipline Cases and The FMLA Handbook, among other books.