NLRB Punishes Employer for Past Unlawful Handbook Policies Despite Employer’s Attempt to Repudiate
May 7, 2015
In Boch Imports, Inc., the National Labor Relations Board (NLRB) found that the employer, a car dealership, violated the National Labor Relations Act because the dealership’s social media and dress code policies were overbroad and interfered with employee rights to engage in protected, concerted activity. In particular, the employer’s social media policy required employees to identify themselves when posting comments about the employer and also prohibited employees from using the dealership’s logos in any manner. The employer’s dress code policy prohibited employees who had contact with the public from wearing pins, insignias, or other message clothing.
The NLRB’s findings regarding the employer’s policies aren’t especially noteworthy; the Board has repeatedly found similar policies unlawful. What is significant, however, is that during the Board’s processing of the underlying unfair labor practice charge, the employer worked with the NLRB regional office to bring the dealership’s handbook policies into compliance. Based on its discussions with the NLRB regional office, the employer removed unlawful policies, except the dress code, from its old handbook, and replaced them with new ones. The employer then issued a new handbook to all employees in 2013.
Despite the fact that the employer had rescinded several allegedly unlawful policies and replaced them with policies blessed by the NLRB regional office before the hearing in this case, the Board found that the rescinded policies could still provide the basis for labor law violations against the dealership. While established NLRB precedent allows an employer to “repudiate” its unlawful conduct, the Board found that the employer’s issuance of the 2013 handbook without notice to employees that it was revising the handbook because of the unlawful policies and that it would not interfere with employees’ Section 7 rights in the future, did not constitute effective repudiation.
To dissenting Member Johnson, this was a case of no good deed goes unpunished. Where, as here, the employer worked with the NLRB regional office to fully comply with the Act, he would not have applied the NLRB’s repudiation criteria with “hyper-technical precision” and believed that the employer had effectively repudiated its alleged misconduct. Member Johnson added: “the best, quickest way to achieve universal handbook legal compliance with Section 7 standards is to encourage employers to involve the Agency in redrafting problematic provisions rather than to effectively punish them.”