National Clothesline

The National Labor Relations Board consists of five members, appointed by the president and confirmed by the Senate.

The board, also known as the NLRB, administers the nation’s principal labor law, the National Labor Relations Act (or the Taft-Hartley Act). Typically, the president appoints members to keep a 3 to 2 margin in favor of his political party.

The NLRB currently has four members, three of whom are extremely pro-union and anti-management Democrats. Two, by the way, were appointed during a questionable Senate recess, and there is litigation pending that challenges their appointments. The board, however, is not being deterred from issuing decisions that drastically affect American workplaces, especially non-union companies.

Under the National Labor Relations Act, union and non-union employees are protected from discipline based on their “concerted activities” in connection with their jobs. The actual language of section 7 of the Act states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities….

This language has been interpreted to mean that employees have the right to discuss their wages, hours, and working conditions with other employees. For example, this language makes handbook provisions prohibiting employees from discussing wages and/or raises illegal.

The board, however, has taken Section 7 to new and dangerous heights. Without regard to the need for civility in the workplace (or even workplace harassment laws), the board is attempting to gut basic workplace policies. For example, the board recently found the following policy a violation of Section 7:

“Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors, and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the reputation of the [Company].”

The board’s reasoning, if you can call it that, was that such language could “chill” the employees’ ability to discuss among themselves the workplace issues of the day.

The NLRB has also recently condoned vulgarity of the worst sort if an argument can be made that an employee is exercising section 7 rights.

In one case, a pro-union employee used a vulgar, disgusting term to describe a female employee who did not support the union, and the board found that crass, anti-social behavior does not remove Section 7 protection.

The foul-mouthed employee was ordered reinstated with back pay. I wonder if the board will excuse, under the First Amendment of the Constitution, any brief filed with it that refers to individual board members in vulgar terms. I doubt it.

The board has also called into question the validity of handbook provisions that state that employees are “at will” and can be discharged for any reason whatsoever. Despite years of acceptance that this language does not suggest that the employer will use illegal reasons, such as race, sex, or union activities, to discharge employees, the board again is stating that such a handbook policy chills Section 7 rights.

Finally, the NLRB has jumped into the social media arena by ruling that restrictions on the use of social media such as Facebook could violate the Act.

If Facebook is used to exercise Section 7 rights, the board has found, employer discipline based on Facebook use — including use during working hours — can be an unfair labor practice. The board seems hell-bent on preventing an employer from restricting the use of social media in any way, including the use of social media to disparage and ruin the reputation of the employer.

Because almost all handbooks contain language that is now getting scrutinized by the NLRB, it may be time to have your handbook looked at again.

Unfortunately, no one knows exactly what to do about these cases being handed down by the NLRB, many of which will certainly be appealed to federal court. Reissuing handbooks with the language removed is one option, but it seems an overreaction to a National Labor Relations Board with two dubious appointments and a majority of members with an anti-management agenda.

Because some of these cases were decided last week (I am writing this article on October 11), there has been little time to figure out the best reaction.

Given the importance of this issue, next month’s column will also be on this topic. By that time, I hope to have concrete suggestions on what an employer should do about previously valid handbook provisions that the NLRB now finds problematic. If you cannot wait until next month, I suggest you consult my firm’s website for guidance at www.kollmanlaw.com.