Over the past several years, EmployNews has chronicled increasingly aggressive efforts by the National Labor Relations Board to challenge and invalidate standard employee handbook policies issued by non-unionized employers. The NLRB General Counsel contends that any policy which has or could conceivably have the effect of deterring employees from discussing terms and conditions of employment or exploring unionization violates Section 7 of the NLRA’s protections of concerted activity.
Last month, a federal Administrative Law Judge issued a mixed opinion, upholding and rejecting various challenges to an employer’s policies. The ALJ’s opinion is the beginning of a potentially long appellate process, and these decisions should not be taken by employers as absolute precedent for guiding their policy development. However, this case shows that the NLRB’s General Counsel is now challenging policies that have been presumed to be Section 7 compliant. Professional Electrical Contractors of Conn., Inc. involved among other things, NLRB challenges to the following employer policies:
• A prohibition against employees disclosing to persons outside the company locations where customer work is being performed
• A prohibition against disclosing customer telephone numbers to persons outside the company
• A prohibition against “boisterous or disruptive” activity in the workplace
• A prohibition against employees taking photographs at work or recording workplace conversations
On their face, none of these policies appear to have any deterrent effect against concerted activity, yet the General Counsel’s office contended that each policy conceivably could be used to interfere with employee gatherings or unionization activities. The ALJ’s decision upheld the NLRB’s position on all but the second policy, finding the remaining three to be overbroad.
Employers faced with unfair labor practice charges from the NLRB can expect the agency’s counsel to take this kind of aggressive position with regard to challenged policies. More plaintiffs’ lawyers are using NLRB complaints as leverage in disputes between employees and non-unionized employers. Employers should be ready to defend their policies, and to expect a hostile reaction to any policy the NLRB views as restricting employees’ workplace conduct.