Many employers find the current environment created by the National Labor Relations Board (“NLRB” or “Board”) not only confusing, but often quite hostile, particularly its treatment over the past few years of employer work rules governing employee behavior in the workplace.  The Board has taken any increasingly narrow posture, most notably in the past three or four years, in determining if a work rule violates Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”) based on whether “employees would reasonably construe the language to prohibit Section 7 activity,” often ignoring whether the rule has actually been interpreted in such a way by the employer, or influenced an actual employee to forgo protected Section 7 activity.  The Board’s increasingly myopic application of its “Lutheran Heritage” standard for deciding work rule cases (named for the 2004 NLRB decision that defined the standard) has resulted in seemingly reasonable workplace rules prohibiting employees from, for example, stealing company information, using profanity, engaging in fights, and yelling in the workplace, being declared to violate Section 8(a)(1).  These outcomes have led some employers to altogether do away with these reasonable workplace directives.  Which is why a recent decision from a NLRB Administrative Law Judge in Green Apple Supermarket of Jamaica, Inc. v. United Food and Commercial Workers, Local Union 342, AFL-CIO stands out like a beacon in an otherwise stormy night.

In this case, decided on October 19, 2017, Administrative Law Judge (“ALJ”) Kenneth W. Chu found that employer, Green Apple, did not violate Section 8(a)(1) of the Act by maintaining workplace rules that “strictly prohibit[]” “texting,” and declare “[a]ll documents [] confidential and the sole property of Green Apple []” and prohibit employees from distributing, removing from company property, copying, faxing, or photographing these documents.  These rules expressly notify employees that policy violations will result in disciplinary action, and possibly termination of employment.  The NLRB previously has held that broad confidentiality provisions and limitations on photocopying or texting violate Section 8(a)(1) because, among other things, employees could reasonably construe them to mean they are prohibited from sharing wage and benefit with each other or with a labor union.

But here, ALJ Chu rejected the notion that Green Apple’s work rules were facially violative of the Act and instead applied a real-world, common sense approach, finding the rules lawful because no evidence was introduced purporting to explain how and in what manner these rules affected (or could be reasonably interpreted to affect) employees’ ability to exercise their Section 7 rights.  In essence, but without directly addressing it, ALJ Chu appeared to reject a strict Lutheran Heritage analysis that would otherwise deem work rules such as these as unlawful based on a hypothetical restriction on Section 7 rights.

Although employers should not change how they approach their workplace behavior rules based on this case quite yet, the decision may signify, or perhaps may potentially provide a vehicle for, a change in this area of Board law in the future.  Indeed, an appeal of this decision by the NLRB General Counsel would tee it up for consideration by the full Board.  As you may recall from our prior blog post here, in William Beaumont Hospital, decided in April 2016, Board Chairman Philip Miscimarra (before being named Chairman) challenged the Lutheran Heritage standard, noting its failure to take into account the employer’s purpose for creating the work rule, and citing Lutheran Heritage’s vastly inconsistent results.  But under the past Presidential administration, the Board’s then-majority relegated the Chairman’s challenge to the dissent, and expressly confirmed Lutheran Heritage as Board law.  However, the composition of the Board has changed since William Beaumont.  Now complete with five members, the Board also bears a Republican (read: traditionally employer-friendly) majority.  With this environment, Chairman Miscimarra (or his successor, as his term ends in December 2017 and he intends not to seek another term) may finally be able to garner the necessary support for his proposition that the Board overturn Lutheran Heritage in favor of a more nuanced and fact-specific analysis, giving employers the opportunity to explain, in the context of their industry, location, and other workplace-specific facts, why a rule is in place and does not infringe on protected NLRA rights.