We have been conducting educational programs around the country for our clients and friends on the NLRB’s various agenda items.  Among the topics covered was its Acting General Counsel’s focus on social media policies, as well as the Board’s assault on handbook policies generally by frequently implicating NLRA-protected concerted activity.  As the Board’s chief prosecutor, the Acting GC can control the cases brought before the NLRB for decision.

Let’s be clear.  This recent focus on social media and other handbook rules concerns not only unionized employees or those seeking to organize or join a union.  It extends, as well, to the much larger private sector workforce that is not unionized.  Of course, employers of these employees bear the brunt of the NLRB’s attention.  The Acting GC and the Board are encouraging charges over these rules. They have developed and implemented effective public relations methods to inform employees that the NLRB protects their rights, even without a union, in many aspects of their employment, so long as the employees are acting together.

Here is some of what the Acting GC had to say at a November 3rd meeting of the American Bar Association:

• A complaint he authorized in 2010 involving the use of social media, which was picked up by the news media, gave him “a chance to explain to the 93 percent [of private sector workers] who are not represented by unions the National Labor Relations Act” and principles of protected concerted activity under the Act.
• As a result of the publicity, the agency received hundreds of unfair labor practice charges from individuals asserting that their employers violated their NLRA rights by punishing them for social media use.  This shows that more workers are “waking up” to their NLRA rights.
• “You can’t do that under the National Labor Relations Act,” he warns companies with what he sees as broadly worded policies that may be reasonably understood by employees to inhibit protected concerted activity.
• Whether an employer’s disclaimer statement in a policy can avoid unfair labor practice liability likely will be reviewed as individual cases are brought to the NLRB.  An effective disclaimer, he cautioned, cannot be “a throwaway line.”  It must provide information about an employee’s rights.

Employers should review their policies to ensure they are in tune with the views of the Board and its Acting GC.  Across the country, union-free companies have been charged with unlawful interference with employees’ concerted activity because of overly broad rules.  In many of the election cases in which we have been retained as counsel, employers have prevailed at the polls only to be charged with objectionable conduct based upon handbook rules.  All employers should conduct supervisory training to educate supervisors about protected concerted activity.