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NLRB 2012 Decisions/Guidance Throwing HR For a Loop

Tuesday, January 29, 2013 15:49

In the past year, the National Labor Relations Board (NLRB) issued numerous decisions and guidance that have employers concerned and conflicted. The NLRB is increasingly focusing its attention on workplace policies and, as a result, employers – union and nonunion – are facing some confounding policy drafting and enforcement situations.

Many of these issuances likely will be challenged in the courts, however, for now employers should proceed particularly cautiously in the following situations.


The NLRB has found policies prohibiting employees from disclosing confidential information to be “reasonably interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves – activities that are clearly protected by Section 7” of the National Labor Relations Act (NLRA). The NLRB applies this interpretation to ongoing workplace investigations as well as to confidential company information in general.

The Board found unlawful provisions that threaten employees with discharge or criminal prosecution for failing to report unauthorized access to or misuse of confidential information.

The NLRB cautions that prohibiting employees from revealing nonpublic company information on a public website, also could be construed by employees as precluding them from discussing terms and condition of employment among themselves or with non-employees.

Related to social media, the NLRB took issue with an employer prohibiting employees using social media from releasing confidential, guest, team member, and company information.

Defamatory Statements

A recent case involving Costco challenged the company’s policy language that stated “Employees should be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person’s reputation or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline up to and including termination of employment.” The NLRB determined that employees could reasonably construe the policy as one that prohibits Section 7 activity, as its prohibitions were “too broad” and “clearly encompasses concerted communications”.

“At Will” Employment Language

The Board has taken the position that employee handbooks with language about at-will employment and prohibiting any change in terms and conditions of employment except in a written document signed by a company executive violate the Section 7 right to participate in union-organizing activities. The NLRB’s argument is based on the assumption that if employees unionize, they can alter the terms and conditions of employment.

Discipline While Bargaining for First Contract

Of particular importance to newly unionized employers is the NLRB decision that, where a collective bargaining agreement and arbitration system does not exist, as is usually the case where an employer and a union are bargaining a first contract, an employer generally may not unilaterally exercise discretion in imposing significant discipline. Instead the employer must give the union notice and an opportunity to bargain before imposing such discipline on an employee.

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In evaluating how to address the NLRB’s positions with regard to employment policies, employers need to consider whether the risk of harm in not having particular language in its policies may be greater than the risk the NLRB will file an unfair labor practice charge.

For additional information, contact PWA at

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