Conflict Warning SignThe war on reason being waged by the National Labor Relations Board and its Administrative Law Judges against primarily non-union employers continues. From the decisions appearing almost weekly, it seems that a design exists to create absolute chaos in the non-union workplace.  Rules that are commonplace in the unionized sector are being declared verboten for being overbroad and ambiguous. Just recently, Administrative Law Judge William Nelson Cates in Hoot Wing, LLC and Ontario Wings LLC d/b/a/ Hooters of Ontario Mills, Cases 31-CA 104872, et al. (May 19, 2014) (“Hooters”) found unlawful a rule at a restaurant providing that “[i]nsubordination to a manager or lack of respect and cooperation with fellow employees or guests” might result in discipline up to and including immediate termination.  This rule according to Judge Cates is too broad and subjective, as it does not define “insubordination” or “lack of respect.”  Enforcement would have a chilling effect on Section 7 rights.  Those familiar with labor relations know, however, that there are few union contracts that do not mandate discipline for insubordination towards a supervisor.  Expecting rules to define with particularity the exact contours and parameters of insubordination or lack of respect imposes an impossible burden.  It would appear to evidence naiveté on the part of the judge, or a lack of understanding of basic notions of industrial justice that have been recognized by management and labor.  It is possible to parse most any rule and claim it is overbroad or ambiguous.  Yet, the vast majority of working men and women recognize insubordination and lack of respect when they are presented.

The Judge also concluded that the restaurant could not have a rule against “disrespect to guests.”  This rule, too, was “over broad and unqualified.”  The Judge claimed that these rules chill the exercise of protected rights.  Prohibitions against profanity or negative comments or actions are overbroad in that no examples or clarifications were provided in the rules. The Judge would not allow the employer to prohibit workers from posting language or pictures, or posting information about customers.  And, as we have previously learned from Judge Goldman in The Kroger Company of Michigan, Case No. 07-CA-098566 (April 22, 2014), a company cannot require employees to include a disclaimer with their postings.

It is generally understood that an employer should not discipline without detailing to its employees in advance the rules which, if violated, will result in discipline.  But cases such as Hooters effectively make this impossible.  Judge Cates is opining that rules are violative of Section 7 rights unless they are exhaustive and longer than a criminal code.   The direction of these cases suggests that reasonable rules of almost any kind will potentially be unlawful.  An Alice in Wonderland World is being created where up is down, and down is up, or at least ambiguous.