Harry Potter’s Visit to the Theater of the Absurd: the NLRB Strikes Again Harry Potter’s Visit to the Theater of the Absurd: the NLRB Strikes Again

Harry Potter’s Visit to the Theater of the Absurd: the NLRB Strikes Again

In December 2015, the U.S. Chamber of Commerce released a report entitled Theater of the Absurd: The NLRB Takes on the Employee Handbook. The report focused on a number of decisions issued by the National Labor Relations Board (NLRB) in which the NLRB found that employers violated the National Labor Relations Act by adopting work rules that most employers would consider common and innocuous.

For example, the NLRB found that employers violated federal law by adopting handbook policies requiring employees to act courteously, rules to protect sensitive confidential and proprietary information, and even at-will employment policies. In those decisions, the NLRB relied on its interpretation of Section 7 of the National Labor Relations Act. That section of the law protects an employee’s right to engage in “concerted activity” for “mutual aid or protection.” The NLRB has stated that a rule is unlawful under the National Labor Relations Act if an employee would “reasonably” think that the rule would prohibit him or her from engaging in concerted protected activity.

The U.S. Chamber’s Theater of the Absurd has now intersected with Harry Potter in a decision issued on April 13, 2016 by the NLRB.  In William Beaumont Hospital and Jeri Antilla, 363 NLRB No. 162, a hospital terminated the employment of two nurses for intimidating and bullying behavior that came to light when other employees were interviewed in connection with the tragic death of a newborn child at the hospital. While the termination decisions were found to be lawful, the NLRB took this opportunity to express its intolerance for seemingly well-founded employer rules. For example, the NLRB held that prohibiting employees from engaging in the following conduct was unlawful: 

  • Making verbal comments or physical gestures directed at others that exceed the bounds of fair criticism.
  • Engaging in behavior that is …counter to promoting teamwork.
  • Engaging in conduct that impedes harmonious interactions and relationships.
  • Making negative or disparaging comments about the . . . professional capabilities of an employee or physician to employees, physicians, patients, or visitors.
Where is Harry Potter, you ask? To find him, take a look at the dissenting opinion of NLRB Member Philip Miscimarra, who is the only Republican voting member of the NLRB. In his dissent, Member Miscimarra stated:

“Under [Board precedent], reasonable work requirements have become like Lord Voldemort in Harry Potter: they are ever-present but must not be identified by name. Nearly all employees in every workplace aspire to have ‘harmonious’ dealings with their coworkers. Nobody can be surprised that a hospital, of all workplaces, would place a high value on ‘harmonious interactions and relationships.’ There is no evidence that the requirement of ‘harmonious’ relationships actually discouraged or interfered with NLRA-protected activity in this case. Yet, in the world created by [Board precedent], it is unlawful to state what virtually every employee desires and what virtually everyone understands the employer reasonably expects."

The lesson for employers is that they must remain vigilant in connection with the adoption of handbook rules and policies. A discussion regarding the risks, costs and benefits of rules should occur and clients should consider whether this should be an attorney-client privileged and confidential dialogue.
If the political makeup of the NLRB remains unchanged after the next presidential election, employers should expect that the NLRB will continue to issue decisions that may be surprising to them. I want to keep clients out of the Theater of the Absurd, whether a Harry Potter film is playing or not.

Questions regarding work rules and handbooks can be referred to Michael Blickman or any other member of Ice Miller’s Labor & Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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