You Can’t Say That: Labor Board Strikes Down Rules Limiting Employee Speech

By: Lisanne L. Mikula, Esquire

A recent decision by the National Labor Relations Board (“NLRB”) found that an employee could not be terminated because he had warned a co-worker that the co-worker might be fired. Rather, the NLRB held that the employee’s termination-and the employer’s handbook policies upon which that termination was based-violated the employee’s rights under the National Labor Relations Act (“Act”).

In Component Bar Products, Inc., an inspector in one of the company’s manufacturing facilities observed that the plant manager seemed annoyed with an absent co-worker. The inspector telephoned his co-worker to warn him that his job might be in danger. The co-worker was upset and angry that the inspector-and not management-had called to tell him that he might be fired and complained to the employer. The company then fired the inspector for violating its employee handbook rules against “insubordination or other disrespectful conduct” and “boisterous or disruptive activity in the workplace.”

The NLRB found that the inspector’s telephone call was an attempt to “join together” with his co-worker to assist him to avoid termination from employment.   Under the Act, employees have the right to engage in “concerted activities” for the purpose of “mutual aid and protection” regarding terms and conditions of employment-a right which extends to employees in both union and non-union workplaces.   By conferring with his co-worker in an effort to protect the co-worker’s job, the inspector engaged in protected concerted activity under the Act-despite the fact that the inspector’s action was unwelcome and prompted the co-employee to complain to the employer about the inspector’s communication with him.

Although the company maintained work rules which prohibited “insubordination or other disrespectful conduct” and “boisterous or disruptive activity in the workplace”, the majority of the NLRB panel in Component Bar Products, Inc. held that those rules were overly broad and themselves constituted violations of the Act.   Specifically, the majority followed NLRB precedent which holds that where a work rule does not explicitly prohibit conduct protected under the Act, a work rule is nonetheless unlawful if employees would “reasonably construe” the language as prohibiting protected concerted activity.

One member of the NLRB, despite agreeing that the inspector’s termination violated the Act, authored a lengthy dissent against the majority’s conclusion that the handbook rules violated the Act. The dissent argued that the employer’s rules were not improper and advocated for the abandonment of the NLRB’s “reasonably construe” test because it “entails a single-minded consideration of NLRA-protected rights” without considering the many legitimate justifications associated with particular policies, rules and handbook provisions, “which may be associated with important justifications such as preventing unlawful harassment, reducing the risk of workplace violence, or avoiding potentially fatal accidents.” The dissent argued in favor of a balancing test under which handbook rules should only be struck down if the legitimate justifications an employer may have for maintaining the rule are outweighed by its potential adverse impact on protected concerted activity.

The majority decision-and dissent-in Component Bar Products, Inc. demonstrate that the debate regarding the propriety of workplace rules governing employee conduct will continue to evolve in the future. Employers must exercise caution in crafting and enforcing employee handbook policies to ensure that they do not violate their employees’ right to engage in protected activity, while employees who are disciplined for violating rules of conduct should be mindful that under certain circumstances they may have rights which surpass their employer’s rules.

The attorneys at the Law Firm of DiOrio & Sereni, LLP are experienced and available to help you. Contact Lisanne L. Mikula, Esquire at 610-565-5700, or send her an e-mail at

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