NLRB and Handbooks

Very few years ago, most union-free employers did not pay close attention to the decisions issued by the National Labor Relations Board (NLRB), as many believe what was happening with the NLRB did not affect them because their employees were not represented by a union. However, more employers are learning that regardless of the union status of their workplace, Section 7 of the National Labor Relations Act applies considerably to all employers and their operations.

The National Labor Relations Act (NLRA) was enacted in 1935 for purposes of protecting the rights of employees and employers, to encourage collective bargaining, and to restrict certain private sector labor and management practices.

The NLRB is an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. The NLRB is the agency that enforces the NLRA and acts to prevent and remedy unfair labor practices committed by private sector employers and unions. (www.nlrb.gov)

The NLRB has recently been analyzing company policies and procedures, including employee handbooks, now more than ever. This increased scrutiny should prompt employers to pay particular attention to the language used in their policies and procedures, ensuring the language could not be construed as discouraging an employee's exercise of his/her rights under the NLRA. The NLRB specifically evaluates whether language explicitly restricts protected activity, as well as if such language may be understood by employees to do so. Some objectionable language may include phrases such as "be courteous, polite and friendly" and "no one should be disrespectful or use profanity or any other language which injures the image or reputation of the company". These phrases may be ruled unlawful if linked to employees' engagement in Section 7 activities.

Another policy which could come under scrutiny by the NLRB is the very common business practice of advising employees to refrain from discussing individual terms and conditions of their employment, for example, rates of pay or benefits. Under Section 7 of the NLRA, employees have the right to discuss the terms and conditions of their employment. Policy language which could be interpreted to prohibit discussions of terms and conditions of employment could be ruled unlawful by the NLRB. In addition, overly broad statements regarding employee communications and activities should also be avoided.

Policies which seem to be receiving the most attention from the NLRB include those related to social media, confidentiality, conflicts of interest, computer use, non-disparagement, and speaking to the media. The NLRB typically finds that a policy violates the NLRA if it meets one of the following conditions:

1. The rule has been applied to restrict the exercise of Section 7 rights;
2. The rule was promulgated in response to union activity; or
3. Employees would reasonably construe the language as prohibiting Section 7 activity.

Employers should regularly monitor NLRB laws and be attentive to maintaining updated policies and procedures. It is extremely important to make sure there are no outdated policies in your company's employee handbook which contain language that is vague or has the potential to be interpreted as restricting Section 7 rights. The key, of course, is how the language is written.

Creative Business Solutions designs and updates employee handbooks for clients on almost a daily basis. We enjoy customizing each employee handbook to the specific needs of our clients' businesses and ensuring each of our valued clients remains in compliance with all laws and regulations applicable to their respective businesses.