Employers Should Be Wary of Activist NLRB

Nicholas Fortuna, February 21, 2014.

The National Labor Relations Board, which is charged with enforcing the National Labor Relations Act, has recently been moving aggressively to regulate both union and non-union workplaces. The NLRB issued 19 decisions in January 2014, compared to 17 decisions in the previous five months combined. The agency is introducing regulations to streamline the union election process and expanding its jurisdiction over religious universities as to whether certain university faculty members can unionize. The expectation is that the Board will continue to use its power to govern a broader swath of workplace issues, particularly in nonunion settings.

The consensus is that the agency will move to change case law in ways that help labor at the expense of employers. The NLRB believes it has broad authority to create workplace policy because it does not bind itself by any federal court rulings except the U.S. Supreme Court. Its position is that the Circuit Courts of Appeal have no authority to direct how the agency may rule on issues properly before the Board. Employers are increasingly concerned that the NLRB may reverse earlier rulings preventing employees from using the employer’s email system for union organizing activities and also that the Board will reverse a 2004 decision finding nonunion employees are not entitled to representation during an investigatory interview that could lead to discipline.

The Board will be scrutinizing nonunion employers’ handbooks for compliance with the NLRA. Areas drawing particular attention are confidentiality, employee conduct, contact with media and law enforcement, at-will employment, dispute resolution, and no loitering rules. The following is a brief description of the concerns and approaches employers should take with respect to these issues.

Confidentiality

Employers should carefully tailor confidentiality rules that are not so broad that they are interpreted to prevent discussion of workers’ terms and conditions of employment. Whatever rule the employer imposes, it should be tied to a legitimate justification within the scope of the business, such as to prevent retaliation or harassment. The burden is on the employer to show a legitimate business reason which outweighs the employees’ rights under section 7 of the NLRA.

Employee Conduct

The Board has held that a prohibition on disrespectful or discourteous activities is a restriction on asserting rights under the NLRA, like advocating for improved terms and conditions of employment. Accordingly, the rights of workers under the NLRA are paramount to an employer’s interest in workplace decorum.

Contact with Media and Law Enforcement

Notwithstanding the logic of requiring employees’ to direct requests from the media or law enforcement to the company’s communications or security department, the NLRB has found certain policies constituted an unlawful restriction on employees’ rights. A better approach for employers is to merely request that such inquiries be directed to the appropriate department, such as the company’s communication or security department.

At-Will Employment

An employer may not require an employee to agree that an at-will employment relationship cannot be modified. Such requirements have been viewed as an unlawful waiver of the right to concerted action (unionize).

Dispute Resolution

The Board is scrutinizing employer internal dispute resolution procedures to determine if they unlawfully deter employees from filing workplace complaints with outside agencies.

No Loitering Rules

The NLRB is examining if company rules prohibiting employees from hanging around the workplace after finishing their shifts affect union organizing activity. The NLRB will look at the history of enforcement of the rule and the justification for it. For instance, it would be suspect if an employer only started enforcing the rule when a union organizing drive began.

The takeaway is that the NLRB is inserting itself much more aggressively in workplace issues. Employers must be careful in how they draft their policies to avoid unwanted action by the NLRB.