My company doesn’t have a union so the National Labor Relations Act (NLRA) and the decisions of the National Labor Relations Board (NLRB) don’t apply to me… right?


In the Spring 2015 issue of BGD Magazine, firm attorneys William J. Kishman and Aleksandr “Sasha” Litvinov discussed what several recent NLRB decisions mean for employers. The cover story delved into the new union election rules and employees’ ability to use their employer’s email systems to discuss union organizing, workplace protests and other similar activities.

In the past several years, the NLRB has dedicated more time to scrutinizing employer policies in unionized and non-unionized work environments. The purpose of this article is to provide additional information to private sector employers about the NLRA and the NLRB’s recent decisions involving employee handbook policies. First, let’s examine how the NLRA and NLRB work together.

What is the National Labor Relations Act?
The NLRA is a federal law that grants employees the right to form or join unions; engage in protected, concerted activities to address or improve working conditions; or refrain from engaging in these activities. Section 7 of the NLRA delineates the protection given to both unionized and non-unionized private-sector employees to engage in protected, concerted activity.
“Protected activity” concerns wages, hours, and other terms and conditions of employment.
“Concerted activity” means for mutual aid and/or protection and inducing others to prepare for group action.

The NLRA applies to most private sector employers, including manufacturers, retailers, private universities, and health care facilities. However, the NLRA does not apply to federal, state or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act (interstate railroads and airlines).

What is the National Labor Relations Board?
The NLRB is an independent federal agency created to enforce the NLRA. Headquartered in Washington DC, it has regional offices across the country where employees, employers and unions can file charges alleging illegal behavior, or file petitions seeking an election regarding union representation.
Charges must be filed in a Regional Office, usually with the help of an Information Officer, within six months of the alleged offense. The Regional Office will then investigate the charge and, if found meritorious, will issue a complaint.
Common allegations against employers in complaints include threats, interrogations and unlawful disciplinary actions against employees for their union activity; promises of benefits to discourage unionization; and, in the context of collective bargaining relationships, refusals to provide information, refusals to bargain, and withdrawals of recognition.
Common allegations against unions include failure to represent an employee and failure to bargain in good faith.

Recent Developments in NLRB Decisions Regarding Employee Handbook Rules
On March 18, 2015, the General Counsel of the NLRB issued a thirty-page Memorandum (see “Report of the General Counsel Concerning Employer Rules”) on recent case developments arising in the context of employee handbook rules. In the Memorandum, the General Counsel explained that the “mere maintenance of a work rule may violate…the Act if the rule has a chilling effect on employees’ Section 7 activity.”

According to the Memorandum, an obvious violation occurs if the policy bans union activity. However, even if a rule does not explicitly prohibit Section 7 activity, it will still be found unlawful if:

  1. Employees would reasonably construe the rule’s language to prohibit Section 7 activity;
  2. The rule was promulgated in response to union or other Section 7 activity; or
  3. The rule was actually applied to restrict the exercise of Section 7 rights.

The Memorandum is broken into two parts. Part 1 provides numerous examples of lawful and unlawful employer policies and rules regarding confidentiality; employee conduct and professionalism; third party communications; restricting use of company logos, copyrights, and trademarks; restricting photography and recordings; restricting employees from leaving work; and conflict-of-interest. Part 2 provides information about a recently settled unfair labor practice charge against Wendy’s International LLC. (The settlement was negotiated after the NLRB determined that several of Wendy’s handbook rules were facially unlawful.)

7 Key Memorandum Takeaways for Private Sector Employers
Following are key points to take away from the Memorandum for each category.

  1. Confidentiality – an employer’s policy that either specifically prohibits employee discussions of terms and conditions of employment – such as wages, hours or workplace complaints – or that employees would reasonably understand to prohibit such discussions, violates the NLRA. Policies that protect the confidentiality of the employer’s proprietary and trade secret information will be found lawful.
  2. Employee Conduct and Professionalism – an employer’s policy that prohibits concerted criticism of the employer will be found unlawfully overbroad, i.e., a policy that prohibits employees from engaging in disrespectful, negative, inappropriate or rude conduct towards the employer or management (without sufficient clarification or context). Policies that require employees to be respectful and professional to coworkers, clients or competitors will generally be found lawful.
  3. Third-Party Communications – an employer’s policy that prohibits employees from speaking to the media or other third parties on their own behalf is unlawful. Employers may, however, lawfully control who makes official company statements.
  4. Company Logos, Copyrights and Trademarks – an employer’s policy that prohibits all employee use of company logos, copyrights and trademarks is unlawful; employees have a right to use the company name and logo on picket signs, leaflets and other protest material.
  5. Photography and Recordings – an employer’s policy placing a total ban on photography or recordings, or banning the use or possession of personal cameras or recording devices, are unlawfully overbroad where they would reasonably be read to prohibit the taking of pictures or recordings on non-work time. There are exceptions when confidentiality and privacy concerns are at issue.
  6. Employees Leaving Work – an employer’s policy containing broad prohibitions on walking off the job, which reasonably would be read to include protected strikes and walkouts, is unlawful.
  7. Conflict of Interest – an employer’s policy that prohibits all activity in conflict with the employer’s interests will be found unlawful, i.e., employees may protest in front of the company, organize a boycott, and solicit support for a union while on non-work time.

Although the General Counsel’s recent Memorandum attempts to help employers understand what policies are lawful and what policies are not under the NLRA, some of the distinctions made are confusing. The labor and employment attorneys at BGD can help you make the correct distinction between your company’s lawful and unlawful policies.

By Carolyn Clay Hall of Bingham Greenebaum Doll