Easy is the descent into Hell, for it is paved with good intentions..
All employees have rights that are guaranteed by the National Labor Relations Act. Many of those rights apply only to unionized employees, but some apply to everyone. One right that applies to all employees is an employee's right to discuss the conditions in their workplace. What this was designed to do was to ensure that if employees are working in unsafe conditions, or are not being paid properly, they can discuss those issues with each other or with management without being disciplined for being 'a troublemaker.' However, like many good intentions, this one has led the NLRB to a very bad place.
Every employer has the right to maintain a workplace that is free of threatening, rude or abusive conduct by supervisors and employees. And OSHA and the EEOC would agree that the employer has the obligation to maintain a civil workplace. However, the NLRB has once again tried to address the line between a legitimate gripe about the workplace and abusive conduct, and has only complicated the matter for everyone. Their primary concern now is not situations where employees are disciplined for exercising their rights, but rather rules which might discourage or 'chill' an employee's exercise of their rights - without any evidence that this has actually happened.
The NLRB recently issued a decision in a case called Pier Sixty, LLC which held that the company issued discipline for a post on Facebook was illegal, and reinstated the employee with back pay. The post in question stated (in reference to his supervisor):
Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
There was an impending union election and some other factors used by the NLRB to justify its decision, but one significant factor was that the employer did not have a rule prohibiting rude, profane or abusive conduct.
It would be easy to criticize the employer for failing to have a rule, and most people would point to their own company's rule prohibiting that exact type of behavior.
But the NLRB has also ruled that many these types of these rules are illegal.
In another recent case, Hooters of Ontario Mills, two waitresses were fired after an allegedly rigged bikini contest where they called a Hooters marketing coordinator (and bikini contest winner) a 'f*cking b*tch' and screamed obscenities at her across a public parking lot. The Administrative Law Judge ruled that their conduct was protected by the NLRA, and the rule prohibiting their conduct was itself illegal. The rule prohibited, "Insubordination to a manager or lack of respect and cooperation with fellow employees or guests [might result in discipline up to, and including immediate termination.]" Because 'insubordination' was not defined in the handbook, it could 'chill' otherwise protected activity, such as passionately complaining about a rigged bikini contest held your employer. Eight other rules in the handbook were also found to be illegal. The employee who filed the charge was reinstated with full back pay.
The following other rules were all recently examined by the NLRB:
"Be respectful to the company, other employees, customers, partners, and competitors."
Do "not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.
"Be respectful of others and the Company."
A rule prohibiting "[d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management."
All of these rules were also found to be illegal. Fortunately, the NLRB has issued some guidance on rules that are legal under the NLRA, in the 'correct context':
No "rudeness or unprofessional behavior toward a customer, or anyone in contact with" the company.
"Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business."
However, these rules only apply to conduct in connection with customers and members of the public - not interactions between employees, between a supervisor and an employee or that may disparage the company. If you would like to put employees on notice that you expect a civil workplace, you could use this suggested rule:
Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.
However, this rule only survives NLRB analysis because 'disrespectful' is read in the context of much more 'serious misconduct' - which implies that the Facebook post in the Pier Sixty, LLC would not have prohibited it in the eyes of the NLRB. It also may not be clear enough to survive arbitration if the union grieves discipline imposed under this rule.
Sadly, the NLRB has left employers with a choice between two unappetizing options. Write clear, concise rules that explicitly prohibit rude, abusive or offensive conduct, but leave yourself open to charges from the government, or water down the rules so that they are acceptable to the NLRB, but may not be clear enough to survive an arbitration. Which option you choose will depend on what you perceive as the biggest threat to your business, your relationship with your employees and your union (if you have one) and the context provided by the other rules in your handbook.
My advice is to use a spoon with a long handle, and get advice about which option works best for you.
If you have any questions, please do not hesitate to contact me at firstname.lastname@example.org. This post is a publication of Christensen Law, LLC. More details can be found at www.tor.org