5 Ways the NLRB Regulates Employer-Employee Relationships

The National Labor Relations Act (NLRA) is the main federal law designed to regulate the relationship of employers, employees and unions. It establishes practices affecting the rights both of the employer and the employee, most often to do with workplace activities such as union elections, discipline, and privacy issues.

The National Labor Relations Board enforces the NLRA, and promulgates polices designed to interpret the Act’s provisions for employers and employees. Below are five ways in which the NLRB has done so recently:

1. Develop rules for voting on having a union

“The National Labor Relations Board (NLRB or Board) announced new proposed rules that would substantially change—and speed up—the existing union election process, as well as limit employer participation in that process. This appears to be an effort by the Board to achieve, through rulemaking, portions of the failed Employee Free Choice Act (EFCA).”(NLRB Proposes New Rules to Significantly Expedite the Union Election Process and Limit Employer Participation by Morgan Lewis)

2. Establish guidelines related to employee privacy rights

“In recent months, the National Labor Relations Board (“NLRB”) has been hearing an increasing number of cases alleging Section 7 violations as it pertains to Social Media policies and resulting discipline and discharge. Given the new and evolving nature of social media cases before the NLRB, employers should exercise caution when disciplining an employee for conduct on Facebook, Twitter, MySpace and other social media venues. Even though the NLRB’s positions have not been tested in Court, when possible, employers should consult with legal counsel prior to taking action especially given this emerging area of the law before the NLRB.”  (Social Media Policies and the NLRB by Tammy Ensslin)

3. Regulate the arbitration process for workplace disputes

“Under the suggested policy, the Board will not permit deferral of Section 8(a)(1) and 8(a)(3) charges unless the arbitration process can be completed in a year. If it cannot be completed in a year, Acting General Counsel expects the Region to conduct a full investigation of the charge and if found to be meritorious, the case should be sent to the Division of Advice for further action. The change in the deferral policy will not effect of the Board’s approach to Section 8(a)(5) allegations involving breach of contract… The stated rationale for the Acting General Counsel’s position is his concern that undue delay in the arbitration process caused by deferral renders any potential Board remedy meaningless given the passage of time.” (NLRB Revises Unfair Labor Practice Policy by Siegel, O’Connor, O’Donnell & Beck, P.C.)

4. Monitor discipline policies that affect “concerted activity” by employees

“The National Labor Relations Board (NLRB) has ruled that an employer committed an unfair labor practice when it fired a worker for secretly recording a meeting with management. While the facts of the case were unusual, the current NLRB, which increasingly has been scrutinizing and invalidating employer workplace policies, may well apply the rule more broadly. Here, the NLRB based its decision in part on the fact that the employer did not have a policy prohibiting secret recordings. Thus, concerned employers should make sure they have such a policy. But even with it, employers must use caution when disciplining employees for conduct that could be characterized as being for the benefit of other employees, that is, so-called ‘concerted activity,’ which is protected by the National Labor Relations Act.” (NLRB: Secret Recording of Workplace Meeting is Held to be Protected by  Davis Wright Tremaine LLP)

5. Enforce rules regarding malicious and destructive speech to third parties

“The Board recently ruled in favor of an employer concerning an employee’s false statement to a third party in Dresser-Rand Company, 358 NLRB No. 34 (April 19, 2012).pdf. The case is interesting not only because of the conclusion, but for the tactics employed by the union to put pressure on the employer. It was an extension of these tactics that ended up in an employee’s discharge being upheld by the Board as lawful…The judge found the discharge to be lawful, which was upheld by the Board on appeal. The decision, weighing in at 34 pages, contains a very thorough collection of Board cases in assessing whether an employee’s statement to a third party loses protection of the Act.” (NLRB: Maliciously False Statements By Employee To Third Party Not Protected by Proskauer – Labor Relations)

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