Workplace Bullying and the NLRB

Workplace and school violence events have contributed to our increasing national conversation about “bullying.” Recently, NPR quoted a Zogby poll in which more than a quarter of American workers reported that they have experienced abusive conduct at work. 64% of respondents to a Monster Global Poll felt that they had been “bullied, either physically hurt, driven to tears, or had their work performance harmed.” Legislation is pending in a number of states and the topic regularly shows up in several media discussions. I’m convinced that the problem is real.  We would be interested in how many of you are actually implementing workplace anti-bullying policies, whether they are separate from your no-discrimination/no harassment efforts, and whether you are seeing a positive effect?

Both practical and legal problems impede developing effective policies. As an example, how do you define “bullying” and how do you distinguish this objectionable conduct from the sort of workplace banter and teasing that men often use to bond with one another? Michael Akin, Vice President of Government Affairs for the Society of Human Resource Management pointed out that, “It’s tough, if not impossible, to legislate against someone being a jerk.” However, employers may be able to develop an effective Code of Conduct and Effective Anti-Bullying Policy based upon requiring employees to use “good judgment” and to be a “professional.”

Unfortunately Recent NLRB Decisions Make It Harder To Draft Policies

New challenges to employer policies emerge every time the National Labor Relations Board opens its doors. The NLRB has incredible broadly attacked Rules of Conduct as “tending to chill employees in the exercise of their Section VII rights.” Although the D.C. Circuit Court and the Board itself have observed “that threatening and abusive language are not inherent aspects of union organizing or other Section VII activities,” the Board nonetheless strikes down many policies as too vague.

Any policy has to be read as a whole, and a single statement may be lawful or unlawful depending upon the purpose of and the context of the policy. Thus, some of the language set out below has been found lawful in certain context or in conjunction with other policies. Nevertheless, the Board has found the rules below as overbroad in recent cases:

• A rule prohibiting “making false, vicious, profane or malicious statements toward or concerning the hotel or any employee;”
• Verbal comments or physical gestures directed to others that exceed the bounds of fair criticism and behavior that is counter to promoting teamwork;
• Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork;
• Prohibiting “loud, abusive, or foul language;”
• Discipline for “the inability or unwillingness to work harmoniously with other employees;”
• Prohibiting negativity, any type of negative energy or attitudes;
• Engage in any activity which could harm the image or reputation of the company; and
• A rule prohibiting “negative conversations about employees or managers.”

The NLRB decisions are not consistent and it is difficult to find clear patterns. One response may be to utilize the language in some of the proposed state anti-bullying statutes. One proposed statute defines “abusive conduct,” as:

Acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature and frequency of the conduct, including, but is not limited to: repeated verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s work performance. It shall be considered an aggregating factor if the conduct exploited an employee’s known psychological or physical illness or disability. A single act normally shall not constitute abusive conduct, but an especially severe and egregious act may meet this standard;

“Abusive work environment” means, an employee condition when an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects the employee to abusive conduct that causes physical harm, psychological harm, or both;

I would be interested in comments on how my readers are addressing bullying in the workplace.

I also encourage you to obtain legal review of your Employee handbooks and policies, even if you did so in 2013. Yes … the NLRB has changed things that much. But more on that subject in a future post.


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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