As we all know, the NLRB has been working hard in recent years to expand its reach beyond the union workforce – striving to make its decisions and guidance just as relevant to the non-union employer in an age where unions are on the decline. Recent NLRB decisions have found employers liable for unfair labor practices and invalidated policies that, either in reality or in a hypothetical NLRB universe, may infringe on workers’ rights to engage in concerted protected activity, like discussing compensation or other work conditions, under the National Labor Relations Act (“NLRA”).
This week, the general counsel of the NLRB, Richard Griffin, issued a 30-page memorandum advising employers, union and non-union alike, on how to draft and implement NLRB compliant policies. The report looks at a number of employer handbook rules “frequently at issue” in NLRB cases – including those addressing confidentiality, conduct, logos, photography, and recording rules – comparing the unlawful provisions to their compliant counterparts.
Despite acknowledging that it is unlikely that employers deliberately adopt policies prohibiting or restricting conduct protected by the NLRA, Griffin advises that “the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act.” Yet, while the NLRB memorandum might be helpful, it further reinforced the NLRB’s tendency to subjectively invalidate what would otherwise be considered sound and valid policies. Moreover, for all its guidance, the memorandum did not, and could not, address the practical realities plaguing employers. Day to day considerations of an employer’s operational needs must also be taken into account when attempting to comply with the NLRB’s directives.
All employer policy decisions are a balancing act – an exercise in maintaining an effective, efficient and productive operation while mitigating the costly risks of noncompliance with statutory requirements. At the end of the day, the NLRB will continue interpreting employer policies as it sees fit and employers are left to juggle their obligations while attempting to predict the NLRB’s, at times baffling and inconsistent, rulings.
