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NLRB Affirms Lawful (& Unlawful) Portions of Employer Handbooks

 

Medic Ambulance Services, Inc. - NLRB


Facts:  Medic Ambulance Services, Inc. (“Medic”) had a handbook in place for its employees which included restrictions on its employees using social media, non-solicitation and non-distribution provisions, as well as a prohibition on conducting personal business on company time.  An unfair labor practice charge was filed against Medic on the grounds that the handbook violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by restricting protected, concerted activity.

An Administrative Law Judge (“ALJ”) found these three portions of Medic’s handbook to be unlawful.  The National Labor Relations Board (“NLRB”) was thereafter asked to weigh in on the matter.

Analysis:  The NLRB made quick work of the ALJ’s decision.  In relevant part, the NLRB considered the three parts of Medic’s handbook in order:

Social Media Policy

Medic’s social media policy prohibited inappropriate communications, disclosure of confidential information, use of Medic’s name to disparage people, or the posting of pictures of coworkers.  The NLRB reversed the ALJ’s decision and held that this portion of Medic’s handbook was written in such a way that it would not be reasonably construed to limit protected, concerted activity.

Non-Solicitation/Non-Distribution Policy

In particular, this portion of Medic’s handbook prohibited employees from “solicitation or distribution of literature for any purpose during working hours without prior authorization from management.”  Adopting the ALJ’s decision, the NLRB found this portion of Medic’s handbook violated the NLRA as it was overly broad and presumptively invalid since it would be reasonably construed that employees were barred from this conduct during break times.  Further, it has long been held that a prohibition on the distribution of union ligature during non working hours in non working areas is presumptively unlawful.  In addition, requiring management approval ran afoul of NLRB precedent that any rule which required employees to secure permission before engaging in protected, concerted activity in an employee’s free time in a non work area is unlawful.  Consequently, the language in the handbook prohibiting solicitation or distribution was found to not be sufficiently clear as to employee rights.  As worded, this portion of the handbook was found to be in violation of Section 8(a)(1) of the NLRA.

Conducting Personal Business

Turning to the final contested portion of Medic’s handbook, there was a rule against “conducting personal business on company time or company property for any purpose during working hours without prior authorization from management.”  In this instance, the NLRB again adopted the ALJ’s decision and found this portion of Medic’s handbook to be in violation of the NLRA to the extent it failed to clarify that the restrictions did not apply during non working times and in non working areas.  As a result, the NLRB found this portion of the handbook violated Section 8(a)(1) of the NLRA as it could be construed as banning protected, concerted activity.

The Takeaway:  What went wrong for Medic here?  I think it is relatively straightforward:  The two sections of its handbook that were found to be unlawful were simply written to be too broad (or open to too much interpretation.)  As noted above, had Medic clarified that these two sections of the handbook did not apply to non working times and in non working areas, it is possible, if not likely, it would have survived scrutiny.  However, I believe the NLRB was correct in finding there was simply too much wiggle room in these sections of the handbook that it could be reasonably read as unlawfully stifling protected, concerted activity.

Date:  January 4, 2021

Order:  https://apps.nlrb.gov/link/document.aspx/09031d45833291e3

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