The National Labor Relations Board (NLRB) has taken a hacksaw to yet common employer rule – even when it’s unwritten.

As you may have noticed, the NLRB has been on the warpath to eliminate any employer practices or policies it deems as potentially detrimental to having an organized labor entity take root in a place of business.

Some practices and policies the NLRB has shot down recently, claiming they violate employees’ somewhat vague right under the National Labor Relations Act (NLRA) to discuss the “terms and conditions” of their employment:

• prohibitions on discussing wages
• social media policies prohibiting employees from discussing work matters, and
• handbook policies prohibiting negative comments about fellow team members.

The board has even handcuffed employees’ ability to fire employees for outright insubordination, and it’s looking into whether email policies prohibiting the use of company email for personal matters violate the “terms and conditions” rule.

Overall, the NLRB’s recent actions have forced employers to take a long, hard look at what they’re asking employees to do, and — more importantly — not do.

Can’t prohibit discussions about discipline

An NLRB ruling handed down just a few weeks ago is no exception.

Here’s the rundown: Lee Craft worked for Philips Electronics. During his tenure, he received numerous oral and written warnings — and even a demotion — stemming from performance problems and misconduct.

He’d even been repeatedly warned to stop harassing and intimidating a co-worker, Kim Coleman.

Finally, it got to the point where Craft was given a final written warning about his performance and behavior problems. It stated that if Craft engaged in any further inappropriate behavior, Philips would terminate him immediately.

He was then transferred to another department and instructed to stay away from Coleman’s work area.

Shortly thereafter, Craft drove his forklift into Coleman’s work area and complained loudly that he’d been disciplined because of Coleman’s harassment complaints. He then showed Coleman and other co-workers the disciplinary form he’d been given.

Craft was promptly fired. His discharge notification said:

“Lee Craft is being terminated effective immediately due to disrupting the operation and sharing confidential documentation and information during working hours and continu[ing] to use intimidating language towards management.”

Unfair labor practice charge
Craft filed an unfair labor practice charge challenging his termination, and an NLRB regional director issued a complaint alleging Craft’s firing violated the NLRA. Specifically, the regional director claimed the company’s policy prohibiting the discussion of employee discipline was illegal because it violated the NLRA’s “terms and conditions” rule.

Philips tried to get the complaint thrown out by stating that nowhere did it have a written policy prohibiting employees from discussing discipline. Several Philips employees even testified that was the case.

A three-member board panel reviewed the case and issued two rulings:

• Craft’s termination should stand because even if he hadn’t shared his disciplinary record with co-workers, he would’ve been fired for his outburst, and
• The company did violate the NLRA by having an illegal policy prohibiting employees from discussing disciplinary actions. It said that Philips couldn’t claim such a rule didn’t exist because the company clearly cited Craft for violating the rule. It also said even an unwritten rule to that effect would violate the NLRA.

In it’s ruling, the NLRB went on to say:

“An employer violates Section 8(a)(1) [of the NLRA] when it prohibits employees from speaking with coworkers about discipline and other terms and conditions of employment absent a legitimate and substantial business justification for the prohibition.”

Employer repercussions

For many employers, this means it’s time to change up some long-held policies restricting employees from discussing the disciplinary actions you take against them.

The penalty for Philips, as is the case with other employers found guilty of violating the NLRA’s “terms and conditions” rule:

• Cease maintaining the illegal rule
• Take all actions necessary to come into compliance with the NLRA, and
• Post a notice (they tend to be quite lengthy) explaining the manner in which the company violated the NLRA, the steps it will take to prevent future violations and the rights employees have under the law.

Cite: Philips Electronics North America and Lee Craft (Case 26-CA-085613) [PDF]