by Mark Flora
Recently, I realized that my desk was covered with recent National Labor Relations Board (NLRB) decisions (and articles about those decisions) I needed to review. The problem is, the Board is intruding into nonunion workplaces with such ferocity that it is impossible to keep up. The self-described Rip Van Winkle of government agencies has obviously awakened to the fact that unless it dramatically expands its sphere of influence into nonunion workplaces, it will soon experience death by irrelevancy. 
As unions decline, NLRB ramps up
Unionization has slipped from a high of 35% after World War II to an all-time low of less than 12%. In the private sector, unionization has declined to 6.9% of the workforce. Public-sector employees now account for more than half of the nation’s union members, with approximately 36% of government employees represented. Against this bleak backdrop, dramatic actions from the NLRB were required. Of course, it will be up to the courts to ultimately sort out whether those dramatic actions are legal.
The NLRB’s aggressive attempt to expand protected concerted activity under Section 7 of the National Labor Relations Act (NLRA) is unprecedented. In fact, it is mind-boggling to this labor lawyer who has spent most of his 35-year career dealing in traditional labor areas. Apart from a few key aspects, including the Weingarten ping-pong ball, which went back and forth over the net at least four times between 1975 and 2004, NLRB precedent was generally comfortable, settled, and secure. There was a clear line between traditional labor law and employment law.
Because of how its members are appointed, the NLRB has always been political. Under President Bill Clinton, the Board arguably upped the ante with its reversal of many long-standing precedents. Admittedly, under President George W. Bush, the Board responded in kind. However, the important distinction is that the battles were generally fought over union organizing, mandatory subjects of bargaining, information requests, bargaining orders, and the use of 10(j) injunctions. The battles remained in the organized labor arena at all times. Not so today.
NLRB expands reach
After years of functioning without a full complement of Senate-confirmed members or a General Counsel, the NLRB is locked, loaded, and aimed to dramatically expand the outreach of protected concerted activity. Within the last year, the Board and its administrative law judges have found in favor of the General Counsel in a series of decisions involving nonunion-related policies and practices that have been long considered settled. Those policies and practices include but are not limited to employee standards of conduct, the confidentiality of workplace investigations, employee use of social media, employee and union access to employer-owned e-mail systems, union access to employer premises, Weingarten rights (again!), and mandatory arbitration provisions.
Section 7 of the National Labor Relations Act (NLRA) provides that “employees shall have the right . . . to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB is using an expansive definition of “protected concerted activity” to examine employers’ work rules and handbooks for possible violations of Section 7. Ironically, many of the policies and practices under attack were promulgated to promote employee relations, workplace harmony, safety, customer relations, productivity, quality, efficiency, protection of trade secrets, and a positive workplace.
Now covered by the NLRA . . .
Since 2012, the NLRB has microscopically reviewed various company policies and rules of conduct and regularly found them to be prohibited limitations on protected concerted activity in violation of Section 7. Below are but a few eye-opening examples.
Dress code. One company’s dress code policy stated, “Effective immediately, clothing displaying vulgar/obscene phrases, remarks, or images [that] may be racially, sexually, or otherwise offensive, and clothing displaying words or images derogatory to the company, will not be allowed in any facilities.” The NLRB said the employer could not prohibit employees from wearing offensive clothing to work.
Attempt to control employee statements. The NLRB also objected to a company rule that prohibited employees from “making false or misleading work-related statements concerning the company, the facility, or fellow associates.” Moreover, the Board rejected another company’s “no- gossip” policy, which defined gossip as “talking about a person’s personal life when they are not present; making negative, untrue, or disparaging comments or criticism of another person; and creating, sharing, or repeating information that could injure a person’s reputation, a rumor about another person, or a rumor that is overheard or hearsay.”
Policy on harmonious working relationships. The Board found unlawful another policy subjecting employees to discipline for their “inability or unwillingness to work harmoniously with other employees.”
Nondisclosure of confidential information. A company barred employees from revealing “personnel information[,] including, but not limited to, all personnel lists, rosters, [and] personal information of [coworkers]” and “handbooks, personnel files, personnel information such as home phone numbers, cell phone numbers, addresses, and e-mail addresses.” The NLRB found that an information security policy prohibiting employees from disclosing confidential information related to the company or other employees on social media, in the break room, at home, or in open areas in public places violates Section 7.
Social media policy. The NLRB found a policy informing employees that they “may not blog, enter chat rooms, post messages on public websites, or otherwise disclose company information that is not already disclosed as a public record” is overly broad and violates Section 7. The Board also rejected policies:
- Barring employees from publicly criticizing, ridiculing, disparaging, or defaming the company or its products, services, and policies;
- Prohibiting employees from making disparaging comments about the company through any means, including online blogs and other electronic sites, or through the media;
- Prohibiting discriminatory, defamatory, or harassing posts about specific employees, the work environment, or work-related issues on social media sites; and
- Requiring that all online posts be completely accurate and not misleading and that they not reveal nonpublic company information on any public site. (For more on the NLRB’s take on social media, see the article on pg. 6.)
Workplace investigations. According to the NLRB, companies may no longer maintain a broad policy prohibiting employees from discussing ongoing investigations into employee misconduct. Instead, employers must weigh the application of confidentiality requirements on a narrow, case- by-case basis.
Savings clauses. Finally, a company handbook contained a “savings clause” indicating that nothing in it should be interpreted to abridge any rights under the NLRA. The Board found the savings clause was an ineffective attempt to cure “unlawfully broad” language in the policies.
Bottom line
And all this time, you thought the NLRA only covered union organizing activities and the employer”union relationship. Review your handbooks carefully.
Mark Flora is partner and office head in the Austin office of Constangy, Brooks & Smith, LLP. He may be contacted at mflora@constangy.com.