United States: Work Rules Hanging In The Balance? NLRB Dissenter Proposes Balancing Test Blueprint For Work Rule Challenges, A Significant Departure From Board Precedent

Last Updated: April 29 2016
Article by David M. Katz

Earlier this month, the NLRB struck down a couple of facially-neutral workplace civility rules in an employer's Code of Conduct.  Ho hum, business as usual.  (We have written extensively about the Board's crusade against what it considers overbroad work rules.  See, for example, our posts here, here and here)  What is fascinating, however, about this otherwise unremarkable decision is the spirited dissent penned by Member Philip A. Miscimarra, calling for the NLRB to overrule Board precedent which renders unlawful all employment policies, work rules and handbook provisions whenever employees could "reasonably construe" the language to prohibit the exercise of rights afforded by National Labor Relations Act Section 7, which protects "concerted" activities that employees engage in for the purpose of "mutual aid or protection."  Rather, as detailed below, Member Miscimarra proposes a balancing test, which would take into consideration, at minimum, (i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.


The Beaumont Hosp. matter arises from a heart-wrenching set of circumstances related to the death of a newborn baby at a hospital.  A hospital investigation concluded that the infant's death resulted in part from a lack of communication among hospital personnel.  A subsequent investigation led to the discharge of two nurses for engaging in intimidating and bullying behavior.  Member Miscimarra and the majority agree that the discharges were lawful.  They disagree, however, on work rules.

The hospital's Code of Conduct identifies the following justifications for the two rules at issue:

It is the intention of [the hospital] to foster effective working relationships among all hospital employees and physicians in order to provide and maintain high quality and safe patient care.  Such relationships must be based upon mutual respect to avoid disruption of patient care or to hospital operations.

It is the expectation of hospital management that employees and physicians promote and maintain a professional environment in which all individual[s] are treated with dignity and respect.

After this introduction, the Code of Conduct sets forth the several rules, including the following two provisions that the majority found unlawful:

  1. Conduct on the part of [an] employee or physician ... that impedes harmonious interactions and relationships will not be tolerated.
  2. Improper conduct or inappropriate behavior ... includes ... [n]egative or disparaging comments about the moral character or professional capabilities of an employee or physician made to employees, physicians, patients, or visitors.

Under the NLRB's 2004 Lutheran Heritage decision, employment policies, work rules and handbook provisions are rendered unlawful whenever employees could "reasonably construe" the language to prohibit Section 7 activity.  The majority here applied Lutheran Heritage in invalidating the two above-quoted rules, and in so doing, downplayed the importance of the decision.  The majority characterized its decision as follows:

The practical impact of our decision today is modest–an order requiring modification of a few provisions of an extensive employer handbook, the vast majority of which was either unchallenged or upheld.  In short, this case is (or at least should be) a relatively unremarkable application of well-established law to uncontroverted fact.

The Dissent

In his dissent, however, Member Miscimarra saw things quite differently, characterizing Lutheran Heritage's flaws in more colorful terms.  He stated:

Under Lutheran Heritage, 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. ... Yet, in the world created by Lutheran Heritage, it is unlawful to state what virtually every employee desires and what virtually everyone understands the employer reasonably expects.

Describing it as "too simplistic at the same time it is too difficult to apply," Member Miscimarra identified "multiple defects" in Lutheran Heritage's "reasonably construe" standard, including:

  • The "reasonably construe" standard entails a single-minded consideration of NLRA-protected rights, without taking into account the legitimate justifications of particular policies, rules and handbook provisions.
  • The Lutheran Heritage standard stems from several false premises that are contrary to the NLRA, the most important of which is a misguided belief that unless employers correctly anticipate and carve out every possible overlap with NLRA coverage, employees are best served by not having employment policies, rules and handbooks.
  • In many cases, Lutheran Heritage invalidates facially neutral work rules solely because they are ambiguous in some respect, and this requirement of linguistic precision stands in sharp contrast to the Board's treatment of "just cause" provisions, benefit plans and other types of employment documents.
  • The Lutheran Heritage "reasonably construe" test improperly limits the Board's own discretion by rendering unlawful every policy, rule and handbook provision an employee might "reasonably construe" to prohibit any type of Section 7 activity.
  • Lutheran Heritage does not permit the Board to differentiate between and among different industries and work settings.
  • The Lutheran Heritage "reasonably construe" test has defied all reasonable efforts to make it yield predictable results, as it has been exceptionally difficult to apply, creating enormous challenges for the Board and courts and immense uncertainty and litigation for employees, unions and employers.

On this last point, the dissent created a chart summarizing the inconsistencies and arbitrary results yielded through application of the Lutheran Heritage test to one subset of work rules:  The following represents a small sampling of civility rules in cases parsed by the administrative law judge who initially presided over this case:

Lawful Rule

  • 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"

Unlawful Rule

  • 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"

In evaluating these results, Member Miscimarra rhetorically asked: "Do these [examples] permit one to understand what the 'lawful' rules do correctly and what the 'unlawful' rules do incorrectly?  I believe the rather obvious answer is no."  He continued: "Would an employee 'reasonably construe' a difference between [the rules in the first column and those in the second column]? ... Here as well, I believe the rather obvious answer is no."

Most significant to the dissent, in concluding that the Board should overrule Lutheran Heritage and find that the hospital did not violate the NLRA merely by maintaining the disputed Code of Conduct provisions, Member Miscimarra articulated an alternative, "balancing test" approach.  Specifically, he proposed that "when evaluating a facially neutral policy, rule or handbook provision, ... the Board [should] evaluate at least two things: (i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule."  In other words, "[t]he Board must engage in a meaningful balancing of these competing interests, and a facially neutral rule should be declared unlawful only if the justifications are outweighed by the adverse impact on Section 7 activity."


It remains to be seen whether this balancing test, taking into consideration both the impact of the work rule and the employer's justifications behind it, gains any traction either at the Board-level or in the courts.  Odds are, Member Miscimarra's dissent provides a blueprint for a Circuit Court test case aimed at toppling Lutheran Heritage, which employers (and frankly employees and unions) can agree makes it nearly impossible to confidently determine which work rules (including workplace civility rules) are lawful and which are not.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

David M. Katz
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions