Authored by David P. Frenzia
Jan 14, 2015
In Casino San Pablo, 361 NLRB No. 148 (2014), the National Labor Relations Board (the “Board”) upheld a rule prohibiting employees from gossiping about supervisors, managers and other employees. But, the Board’s decision is hard to square with its previous past pronouncements finding a variety of rules, including a more detailed and, arguably, more restrictive “no gossip” policy, unlawful. For example, over the last year, the Board took issue with a policy that prohibited employees from making negative comments about other employees. In another case, the Board found a policy that prohibited employees from having a discourteous or inappropriate attitude toward fellow employees and customers to be unlawful.
The Board’s Casino San Pablo decision appears to turn on what one considers “gossip” to be. According to the two-member majority, the gossip targeted by Casino San Pablo’s policy is that “which is commonly defined and reasonably understood as chatty talk or rumors or reports of an intimate nature,” even though the policy didn’t provide a definition of “gossip.” But, as Chairman Pearce pointed out, the term “gossip” is “imprecise, ambiguous, and subject to different meanings, including a reasonable belief that it would include protected activity.” Contrary to the majority, Chairman Pearce would have found that Casino San Pablo’s “no gossip” rule violated the National Labor Relations Act.
So, what’s the takeaway? Contrary to what appears to be, at first blush, a favorable ruling for employers, the only definite conclusion that can be drawn when it comes to the Board’s position on “no gossip” policies is that it’s uncertain whether a particular policy will survive scrutiny. Employers should seek counsel and tread cautiously when implementing policies addressing this issue as well as other workplace conduct given the current tenor of the Board.
If you have any questions about Labor Relations or any other Employment Law matter, please do not hesitate to contact David P. Frenzia, R. Michael Lowenbaum, Corey L. Franklin, D. Michael Linihan, Robert S. Seigel, Whitney P. Cooney, Jamie M. Westbrook, or Ashley A. Diaz.