Ken Dolin Published in The National Law Journal

Ken's article, "Labor Law: Work Rules and § 7 Rights," in the August 7, 2006 issue of the National Law Journal highlights the challenge the National Labor Relations Board (NLRB) has in regulating conduct from workers attending union organizing activities.  "In Lutheran Heritage Village-Livonia, the NLRB upheld work rules prohibiting "abusive and profane language," "harassment" and "verbal, mental, and physical abuse" - - all of which were intended to maintain order in the workplace and none of which explicitly or implicitly prohibited § 7 activity-while finding a nonsolicitation rule and a no-loitering rule unlawful."

He writes: "In regulating conduct attending union organizing activities, the board's primary concern is to protect the statutory rights of employees, but in doing so it must balance those rights against the rights of the employer. Hardin & Higgins, 1 The Developing Labor Law (BNA Fourth Ed. 2001) at 76. Section 7 of the National Labor Relations Act (NLRA) provides: "Employees shall 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." 29 U.S.C. 157 (2006). Section 8(a)(1) of the NLRA forbids employers to "interfere with, restrain or coerce" employees in the exercise of § 7 rights. 29 U.S.C. 158(a)(206)."

"In Lafayette Park Hotel, 326 NLRB 824, 825 (1998), the board explained that to determine whether the mere maintenance of certain work rules is unlawful, "the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their § 7 rights." . . . In Adtranz ABB Daimler-Benz Transp. N.A. Inc. v. NLRB, the U.S. Circuit Court of Appeals for the District of Columbia found that the board had misapplied its traditional analytic framework as set forth in Lafayette Park in concluding that an employer's rule banning "abusive or threatening language" was unlawfully overbroad. The court held that the rule was lawful because it was clearly intended to maintain order and avoid liability for workplace harassment and could not reasonably be read to prohibit activity protected by § 7. . . . Following guidance from the D.C. Circuit in Adtranz, the board majority in Lutheran Heritage Village-Livonia announced how it will determine whether the maintenance of a challenged rule is unlawful. If the rule explicitly restricts activities protected by § 7, the rule will be found unlawful. If the rule does not explicitly restrict activity protected by § 7, a violation is dependent upon a showing of one of the following: The employee would reasonably construe the language to prohibit § 7 activity; the rule was promulgated in response to union activity; or the rule has been applied to restrict the exercise of § 7 rights.

Ken adds: "It is difficult to reconcile the Lutheran Heritage Village-Livonia majority's test for evaluating the legality of a challenged rule with the application of this test in the context of evaluating the employer's no-loitering rule. Four of the five board members found the employer's no-loitering rule unlawful because "employees could reasonably interpret the rule to prohibit them from lingering on the employer's premises after the end of a shift in order to engage in [protected] activities, such as the discussion of workplace concerns." Chairman Robert J. Battista, on the other hand, concluded that the no-loitering rule was lawful because it did not explicitly forbid protected activity; it was not promulgated in response to protected activity; it had not been applied to protected activity; and employees did not ordinarily nor reasonably refer to their organizing activities as "loitering." It could also be argued that, post-Sept. 11, 2001, prohibiting employees from remaining in or near a workplace in an idle or apparently idle manner serves a legitimate security purpose, and therefore the promulgation of such no-loitering rules should be permitted.  Following the D.C. Circuit's view in Adtranz, Lutheran Heritage Village-Livonia recognizes the legitimate right of employers, as well as employees, to have a civil and decent workplace. Contrary to the views of the dissenting members in Lutheran Heritage Village-Livonia, the current board will not protect unreasonable interpretations of rules; merely because a rule can be interpreted to apply to protected rights is an insufficient basis for overturning the rule. The facial validity of the rule, however, will immunize neither its promulgation from challenge when the rule was promulgated in response to union or other protected activity nor its application from challenge when the rule has been applied to restrict the exercise of protected rights."