NLRB Actions Increasingly Target Nonunion-Employer Policy Provisions

Source: Melissa Gonzalez Boyce, Employment Relations Today, Volume 41, Issue 1, Spring 2014
(subscription required)

Facing a sharp decline in union membership and dwindling labor activity threatening both its dockets and its budget, the National Labor relations Board (NLRB) seems to be redefining itself in an apparent bid to remain relevant outside the world of organized labor. Unfortunately for nonunion employers, it is doing this by taking more aggressive steps to remind them that the National Labor relations act (NLRA) protects not only an employee’s right – both union and nonunion alike – to engage in certain activity, including the right to discuss terms and conditions of employment. One strategy that is sending shockwaves across nonunionized workplaces is the NLRB’s targeting of the ubiquitous employee handbook as a vehicle to enure that everyday policies and practices in no way restrict and employee’s right to engage in protected activity under the NLRA.

To that end, the NLRB has been scrutinizing standard policies, including social-media and confidentiality policies, to determine whether they are so vague and overbroad that an employee may reasonably believe that abiding by the policy will “chill” or restrict the employee’s right to discuss working conditions with coworkers. Most significantly, the NLRB will find a policy unlawful under the NLRA not only if it interfered with an employee’s ability to engage in protected activity, but also if the policy merely had the potential to do so…..