United States: Enforcing Civility: The Board's New Boeing Standard Influences A Range Of Policies Promoting Positive Workplaces For Employers And Employees

In The Boeing Co., 365 NLRB No. 154 (2017), the Board approved the maintenance of rules promoting "harmonious interactions and relationships," and requiring civility in the workplace, as categorically lawful. "To the extent the Board in past cases has held that it violates the Act to maintain rules requiring employees to foster 'harmonious interactions and relationships' or to maintain basic standards of civility in the workplace, those cases are hereby overruled."

The Board's decision refers generally to civility rules providing "common-sense" standards of conduct as appropriate to be maintained. A closer look at the Board's reasoning, in light of the General Counsel's recent guidance Memorandum GC 18-04 ("Guidance on Handbook Rules Post-Boeing), illustrates both the breadth of the Board's endorsement of civility rules, and also some important limitations. The Boeing Co. does not merely approve rules prohibiting workplace rudeness or requiring courtesy as a general matter; it also reflects a new perspective on rules such as those regulating coworker harassment, disparagement, and cooperation.

The Board's Broad Endorsement of Workplace Civility Standards

Previously, the Board's focus on the restrictive implications in common handbook provisions under Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), produced a number of surprising results. Because protected speech may include "intemperate, abusive and inaccurate statements," Linn v. United Plant Guards, 383 U.S. 53, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966), the Board found restrictive, and therefore unlawful, maintenance of rules prohibiting inappropriate, offensive, disrespectful, loud, disruptive, discourteous, disparaging or negative workplace conduct, to name just a few. The Board's criticism in The Boeing Co. of prior decisions finding such rules unlawful under the Act struck an ironic tone. "We do not believe that when Congress adopted the NLRA in 1935, it envisioned that an employer would violate federal law whenever employees were advised to 'work harmoniously' or conduct themselves in a 'positive and professional manner.'"

Because Section 7 activities are broadly consistent with "basic standards of harmony and civility," the Board explained that civility rules "would have little if any adverse impact on these types of protected activities." As against their limited impact on core rights protected by the Act, such rules meet both employer and employee interests in the workplace ("nearly every employee would desire and expect his or her employer to foster harmony and civility in the workplace"). Maintaining civility rules is also strongly justified by "the employer's legal responsibility to maintain a work environment free of unlawful harassment based on sex, race or other protected characteristics, its substantial interest in preventing workplace violence, and its interest in avoiding unnecessary conflict that interferes with patient care (in a hospital), productivity and other legitimate business goals."

What precisely are the "civility" rules that the Board endorsed in its decision? As commonly understood, they include rules the Board has found overly broad in the past requiring politeness, courtesy and respectful workplace interactions. They also would include rules prohibiting rudeness and unprofessionalism like those the Board has approved in prior cases. Certainly employees would expect to find such rules in their own workplaces; they serve the interests of employers and employees; they are justified by anti-harassment concerns; and they promote employers' goals of maintaining safe, productive workplaces.

While it is important to note that the Board limited the reach of its holding in The Boeing Co. by saying that "other than cases addressed specifically in this opinion, we do not pass on the legality of the rules at issue in past Board decisions," the decision covers a lot of ground. The Board cites at least 35 decisions applying Lutheran Heritage to facially neutral rules including those pertaining to civility in the workplace. These include cases addressing rules requiring harmony or prohibiting negativity; rules prohibiting rude, condescending or socially unacceptable conduct; rules regarding abusive, threatening language and harassment; rules restricting disparagement; and rules requiring employees to work cooperatively. The Board found all of these encompassed by its approval of civility requirements generally.

In particular, the Board included the following examples of civility rules that are now categorically lawful under The Boeing Co.'s new standard:

Examples of lawful rules requiring harmony or prohibiting negativity

  • A rule prohibiting "conduct...that is inappropriate or detrimental to patient care of [sic] Hospital operation or that impedes harmonious interactions and relationships";
  • A rule subjecting employees to discipline for "inability or unwillingness to work harmoniously with other employees"; and
  • A rule prohibiting "any type of negative energy or attitudes."

Examples of lawful rules prohibiting rude or unacceptable conduct

  • A rule prohibiting "behavior that is rude, condescending or otherwise socially unacceptable."

Examples of lawful rules prohibiting abusive, threatening language or harassment

  • A rule prohibiting "abusive or threatening language to anyone on company premises";
  • A rule prohibiting "verbal abuse," "abusive or profane language," and "harassment";
  • A rule prohibiting "conduct which is injurious, offensive, threatening, intimidating, coercing, or interfering with" other employees; and
  • A rule prohibiting "loud, abusive or foul language."

Examples of lawful rules prohibiting disparagement

  • A rule prohibiting "negative or disparaging comments about the ... professional capabilities of an employee or physician to employees, physicians, patients or visitors";
  • A rule prohibiting "false, vicious, profane or malicious statements concerning the ... employer or any of its employees"; and
  • A rule prohibiting "negative conversations about associates and/or managers."

Examples of lawful rules prohibiting uncooperativeness

  • A rule prohibiting being uncooperative, or engaging in other "conduct that does not support the hotel's goals and objectives."

Application of the Civility Standard to Rules Regarding Coworker Harassment, Disparagement, and Cooperation

The Boeing Co. represents a major departure from prior Board decisions regarding civility when it comes to promoting courtesy and preventing rudeness in the workplace. The illustrations cited by the Board show that the concept of civility extends to many different types of workplace rules that the Board has treated as unlawful in the past.

For instance, previously the Board ruled that policies prohibiting "harassment" were overly broad under the Act when they exceeded equal employment opportunity goals. See 2 Sisters Food Group, 357 NLRB No. 168 (2011). The Board reasoned that the Act protects employees' right to argue and debate with one another about unions, management and workplace conditions, even when the debate turns heated and tempers flared. As the Fourth Circuit stated in enforcing the Board's decision in Consolidated Diesel Co., 332 NLRB 1019, 1020 (2000), enfd. 263 F.3d 345, 354 (4th Cir. 2001), "there would be nothing left of Section 7 rights if every time employees exercised them in a way that was somehow offensive to someone, they were subject to coercive proceedings with the potential for expulsion."

The Boeing Co. takes the opposite view, focusing on the protection of core Section 7 rights such as the right to argue and debate with coworkers, rather than more peripheral rights, such as the right to do so in a manner that is harassing. Section 7 activities are not inconsistent with restrictions on offensive or harassing conduct and core Section 7 rights arguably are not chilled by a civility requirement. Going forward, it appears the Board will allow restrictions of such peripheral rights in order to promote workplaces that are safe, productive, and civil, for the benefit of employers and employees.

The Board's decision also represents a clear departure from prior cases regarding rules prohibiting disparagement. Employees have a broad right under Act to communicate publicly about the workplace. See Eastex, Inc. v. NLRB, 437 U.S. 556 (1978). Public statements have been found to be unprotected when they constitute "a sharp, public, disparaging attack upon the quality of the company's product and its business policies, in a manner reasonably calculated to harm the company's reputation and reduce its income." NLRB v. IBEW Local 1229 (Jefferson Standard), 346 U.S. 464, 472 (1953). To lose the Act's protection, an employee's workplace criticism must evidence "a malicious motive." See Valley Hospital Medical Center, 351 NLRB No. 88 (2007). Applying that standard, the Board has ruled repeatedly under Lutheran Heritage Village that restrictions on critical, derogatory, negative or disparaging statements about the employer, coworkers, or the workplace restrict Section 7 rights and are therefore unlawful.

The Boeing Co. recalibrates this standard by incorporating civility into the standard governing unprotected malicious employee speech. In this respect, the General Counsel's recent Memorandum is instructive. The Memorandum notes that rules prohibiting disparagement are a form of lawful civility prescription under the Board's new standard, citing as highly influential Chairman Miscimarra's dissent in Cellco Partnership, 365 NLRB No. 38 (2017). There, Chairman Miscimarra disagreed with the majority's conclusion that a rule prohibiting disparagement was overbroad, explaining that "employees are capable of exercising their Section 7 rights without resorting to disparagement of their fellow employees."

As the General Counsel explained, disparagement "describes statements that attack" a person. Disparagement means "to describe someone as unimportant weak, bad, etc." and its synonyms include "badmouth," "belittle" and "put down." Thus, disparagement is considered lawful under The Boeing Co. because it is uncivil in the sense that it is deliberately hurtful. A rule prohibiting disparagement therefore does not interfere with the core Section 7 right to criticize the employer particularly when the rule focuses on disparagement of individuals such as coworkers or supervisors. Thus, the General Counsel adds illustrative rules to those cited in The Boeing Co. as categorically lawful, including:

  • A rule prohibiting "disparaging...the company's...employees";
  • A rule prohibiting disparaging or offensive language; and
  • A rule prohibiting posting any statements, photographs, video or audio that reasonably could be viewed as disparaging to employees.

The focus on disparagement as a form of uncivil conduct suggests that other restrictions on criticism more generally will not be encompassed by the endorsement of non-disparagement policies. While prohibiting derogatory, demeaning, or insulting statements likely may be included in a lawful policy prohibiting disparagement, policies prohibiting critical and even damaging statements likely will continue to be found unlawful. Moreover, given that the rationale of the decision focuses on civility, policies prohibiting disparagement may be viewed very differently when they apply to individual coworkers who are vulnerable to unfair criticism, and disparagement of the employer itself. Importantly, the General Counsel's Memorandum explains that he would not necessarily include a rule prohibiting disparagement of the employer as a categorically valid rule under The Boeing Co., but may include it in a separate category of rules that must be evaluated on a case by case basis, because of its tendency to restrict Section 7 rights. The General Counsel has instructed the Regional offices to submit similar cases to headquarters for advice.

The Board's decision also plows fresh ground when it comes to rules prohibiting uncooperativeness. Previously, while the Board viewed rules prohibiting insubordinate conduct generally as lawful, rules that prohibited a lower level of employee resistance were not. The latter were considered intrusive upon employees' rights to vigorously oppose management policies with which they disagreed. Rules requiring cooperation with supervisors were viewed with particular suspicion. See Component Bar Prods., 364 NLRB No. 140 (2016).

The Boeing Co. represents a return to the holding in Lafayette Park Hotel, 326 NLRB 824 (1998) enf. 203 F.3d 52 (D.C. Cir. 1999), in which a rule prohibiting uncooperativeness was found lawful. It also is consistent with the D. C. Circuit's decision denying enforcement of a portion of the Board's decision in University Medical Center, 335 NLRB 1318 (2001), invaliding a rule prohibiting "disrespectful conduct" because, under Lutheran Heritage Village, it arguably prohibited employees' concerted protest of supervisory activity and employee solicitation of union support from other employees. The court held that when read in context, the prohibition on disrespectful conduct clearly did not apply to union organizing, but applied instead to incivility and outright insubordination.

In the future, rules requiring cooperation, and prohibiting disrespectful, uncooperative conduct, will be treated as lawful under The Boeing Co. This ruling does not modify the "core" rights of employees to disagree with their employer or even engage in forms of resistance. Rules restricting any form of opposition to, argument with or confrontation in the workplace, particularly with management, very likely will not be deemed lawful.

What the Civility Standard Means for Employers

The Boeing Co. is likely to breathe new life into civility policies in the workplace. It also will influence a variety of policies that implicate civility as a justification including those involving harassment, disparagement and cooperation. Rules that enable employees to engage in core Section 7 rights without interference are likely to be found lawful under the Board's new standard even if they require a degree of civility in the way they are exercised.

One common denominator in the civility rules cited in The Boeing Co. is their focus on workplace civility, absent any explicit references to restricting conduct outside of work. Regulating nonwork conduct arguably raises different concerns from a Section 7 standpoint, and is justified by different business reasons, than a civility rule. Rules that are drafted with a focus on workplace decorum and respectful workplace interactions appear to be the best fit for the Board's categorization of of lawful rules in this area.

After The Boeing Co., the distinction between maintenance of lawful rules and application of those rules is more important than ever. Rules that the Board would find valid may be only suggestive of interference of Section 7 rights, until they are applied in a manner that creates actual interference. Broad or ambiguous rules, such as a rule prohibiting disparagement generally, still must not be used to discipline an employee for voicing legitimate criticism of workplace policies. Employers should continue to consider the importance of drafting rules that are easy to administer while also preventing unlawful applications that can be anticipated. Consult with knowledgeable legal counsel to avoid potential legal landmines and assure rules are meeting the needs of your workplace.

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.

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