Employers Face Problems with Recent NLRB Decisions

 Employers Face Problems with Recent NLRB Decisions

All private industry employers now face unexpected and adverse consequences arising from language contained in their employee handbooks, confidentiality agreements, social media policies, or other like documents that regulate their employees’ conduct. This threat comes from an unexpected source, the National Labor Relations Board (NLRB).

The nation’s labor laws are administered and enforced by the NLRB, and the new majority of the NLRB – all appointed by President Obama – has very recently (Sept. & Oct. 2012) found companies guilty of Unfair Labor Practices (ULP) based on language contained in documents dealing with employee conduct. The language used by the companies involved in those cases is typical of the language in use by all companies throughout the nation in such documents. Notably, in one case, the company’s “employment at will” explanation in its handbook was found to contain a ULP violation.

In those cases the NLRB found that the language involved could be interpreted by employees as restricting them from freely discussing among themselves the benefits of collective bargaining and union representation. Every company that publishes an employee handbook, restricts employees’ use of social media, requires employees to sign a confidentiality agreement, etc. needs to carefully review the language contained therein and evaluate it in light of this new standard promulgated by the NLRB.

The obvious aim of these new NLRB rulings is to facilitate union organizing of non-union companies. An earlier attempt at this was made by the NLRB in August 2011 when it mandated the posting of a Notice to Employees describing their right and option to deal with their employer collectively through a union. Through a series of suits, filed by the U.S. Chamber of Commerce and others, the posting of this Notice has been deferred, pending the outcome of such suits. It is quite probable, however, that this NLRB Notice (or some other form thereof) will ultimately be required to be posted and will result in many questions and much discussion about possible unionization among employees.

“May 2015 Update:”

The NLRB’s notice posting requirements, discussed in the above article has been cancelled in response to adverse court rulings. The cases discussed in the article relating to unfair labor practices due to language in employee handbooks are still being followed by the NLRB.


To discuss any of these matters or other issues related to union organizing, please contact Durwood D. Crawford at 214-533-3373 or durwoodc@durwoodcrawford.com.