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NLRB = No Longer Reality Based

May 27, 2016

By Michael G. McClory

Quiz time at The Bullard Edge

What do these things all have in common?
Answer: They are not always reality-based.
Before you rush to any conclusions, I will not be advocating for the repeal of the National Labor Relations Act (NLRA) or urging that the National Labor Relations Board be disbanded.  Those would not be reality-based points of view.  However, I will be taking a look at several recent actions taken by the NLRB that do not seem to be reality-based.
Big Picture
Let’s take a 10,000 foot view of the modern business and workplace.  Businesses are organized for a purpose, such as to sell a product (iPhones, tacos, Ostrich Pillows) or to provide a service (legal counsel, accounting, car customization).  Some businesses operate for profit and some do not. 
To help achieve their purposes, businesses team with workers; in exchange for compensation the workers perform specified duties.  Businesses expect that those duties will be performed with a certain level of proficiency.  They also expect that they will not be performed in a way that interferes with the overall effort to meet their business purposes.
Businesses must comply with various workforce laws.  These laws include, among other things, minimum wage requirements, prohibitions on discrimination based on protected characteristics (such as race, disability or age), and numerous workplace safety regulations.
There also is the NLRA.  As described at Section 7, employees “have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].”
Recent Board Actions
While Section 7 seems straightforward enough, the Board seems to miss the point at times.  Several recent actions suggest that the Board is more interested in strict adherence to anachronistic tautologies than it is in applying the law in a way that acknowledges the realities of doing business.  Here are three recent examples.
The Case of the Boorish Bellhop:
The underlying facts in Bellagio, LLC v NLRB are not complicated.  A bellhop at the Bellagio casino in Las Vegas behaved rudely to a guest after the guest did not tip him.  The harassed (and possibly cheap) guest filed a formal complaint with the hotel and the hotel attempted to investigate.  The bellhop (who was already at the final step of progressive discipline) declined to cooperate in the initial attempts to question him regarding the complaint.  The bellhop wanted a shop steward to be with him since there was a potential for discipline, but no shop steward was readily available (the bellhop made no efforts to locate one).  While Weingarten gives him a right to a rep during an interview, the Bellagio discontinued the interview and suspended the bellhop pending investigation (suspended for less than 24 hours) with no loss of pay.  The Bellagio also barred him from the workplace while suspended. 
Nevertheless, by a 2-1 margin the NLRB ruled in favor of the guest-harassing employee on the grounds that he had suffered an unlawful adverse employment action and that his Section 7 rights had been chilled.  The NLRB last week filed a brief with the DC Circuit seeking enforcement of the Board decision.

We need a reality check here.  A rude employee, acting contrary to legitimate business interests, is being protected while a reasonable employer has been paying legal fees for nearly three years to defend itself.  This is not right.
Hospital’s “Professionalism” Rule Violates NLRA:
The context of this matter is quite sad.  After a newborn died unexpectedly, the subsequent investigation cited poor communication between nurses and failure to provide assistance when requested as reasons contributing to the death.  Two nurses were terminated, which terminations the NLRB upheld.

Nevertheless, in its William Beaumont Hospital decision (April 13, 2016) the Board faulted the hospital’s “Code of Conduct for Surgical Services and Perianesthesia” because it believes that parts of the Code could “reasonably be construed to prohibit expressions of concerns over working conditions” (Section 7 rights).  Among other things, the Board disapproved of the ban on “negative or disparaging comments about the … professional capabilities of an employee or physician to employees, physicians, patients, or visitors.”

The Bullard Edge disagrees that such language could reasonably be construed as chilling any right to collective action.  Moreover, the Board’s decision simply added to the crazy quilt of holdings on this topic from the Board.  As highlighted by the dissent, the Board has found that the following rules are lawful:
  • no “abusive or threatening language to anyone on Company premises”
  • no “verbal abuse,” “abusive or profane language,” or “harassment”
  • no “conduct which is . . . injurious, offensive, threatening, intimidating, coercing, or interfering with” other employees
  • prohibiting “conduct that does not support the … Hotel’s goals and objectives”.
At the same time, the Board has found that these rules are not lawful:
  • no “loud, abusive, or foul language”
  • no “false, vicious, profane or malicious statements toward or concerning the … Hotel or any of its employees”
  • no “inability or unwillingness to work harmoniously with other employees”
  • no “negative energy or attitudes”
  • no “[n]egative conversations about associates and/or managers”.

Is everyone clear on that now? 

The Board’s action in this matter evinces a need to regulate that is unneeded, counterproductive, and formulaic. 

“Professionalism” Again?:
If you are still unclear on the rules, perhaps a quick review of the Board’s April 29, 2016 decision in T-Mobile USA, Inc. will help.  In that matter, the Board rapped T-Mobile for its chilling “Workplace Conduct” policy, which provides that the company:
“expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation.  Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.”

The Board believes that barring employees from unprofessional communications and conduct while working is contrary to the provisions of the NLRA.  I doubt the Board is objectively correct; however, if it is, the obviously reasonable approach would be to modify the Act rather than penalizing businesses that enact rules well-calculated to achieve a legitimate business purpose.
If there is anyone out there who believes I have simplified the facts and ignored many of the subtle and important nuances that are part of these decisions, I would agree with you.  That was intentional.  The Bullard Edge understands that the Board cares passionately about the protection of worker rights and that Board decisions are not made lightly.  Moreover, The Bullard Edge also agrees that there is a place for the NLRA in the modern working world.  However, the Board’s outdated approach to interpreting and enforcing the Act needs to be replaced by an approach that recognizes the legitimate needs of businesses to organize themselves in an efficient manner.
Happy Memorial Day to all. 
Best regards,
The Bullard Edge