Employer Rules Prohibiting Illegal Strikes, Slowdowns and Walkouts

By Gerard Morales

On July 30 2020, the National Labor Relations Board (Board), issued a decision on the legality of an employer rule that prohibited employees from engaging in “illegal” strikes. The Board decision on this issue is of significant importance for employers.

In Nicholson Terminal, 369 NLRB No.147 (July 30, 2020) the employer‘s work place policies handbook included a rule stating that the Company considered inappropriate conduct “calling, participating in or encouraging others to call or participate in an illegal slowdown, strike (including a sympathy strike) or walkout.”

Reversing an Administrative Law Judge and applying the analysis announced in The Boeing Company ,365 NLRB No.154 (2017), the Board concluded that the rule was facially neutral. Therefore, the Board analyzed the rule under the “reasonable employee” standard, announced in Boeing.

Under this standard, explained in LA Specialty Produce, 368 NLRB No. 93 (2017), the question is whether the subject rule, reasonably interpreted from “the perspective of an objectively reasonable employee who is aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job,” could be construed as possibly extending to job actions protected by the National Labor Relations Act.

Stating, “We do not see why such employee would construe a prohibition against illegal activity as contrary to its plain meaning," the Board concluded that the employer’s rule was therefore lawful.

Employers may want to consider this decision when drafting or revising their employment policies handbooks.