Why the NLRB Is Its Own Worst Enemy

The NLRB’s social-media war has been front and center for employers since 2010.  Decisions by administrative law judges and by the Board itself, as well as advisory memoranda from the Acting General Counsel have created an impossible patchwork of prohibitions and rules that, if followed, would make managing an efficient workforce effectively impossible.  And it doesn’t stop there.

But social media hasn’t been the only target in the NLRB’s sights. There have been a series of decisions and other events that, if taken seriously, make the NLRB seem more out of touch than ever.  The Board’s positions have become so extreme that, in my opinion, they’re likely to work to employers’ advantage as the public disgust grows. Here are a few of the reasons that I believe the NLRB is likely its own worst enemy.

NLRB Message No. 1:  Racist Language and Racially Insensitive Displays In the Workplace Are Perfectly Acceptable

An employee wore a shirt with “slave” and a picture of a ball and chain printed on the back.  The employee, who was a known union supporter, was disciplined pursuant to the employer’s dress-code policy, which prohibited clothing displaying: (a) vulgar or obscene words or phrases; (b) images that may be racially, sexually or otherwise offensive; or (c) content that is derogatory to the Company.  An ALJ found that the dress code was unlawfully overbroad because it prohibited protected concerted activities and racially or sexually discriminatory language.

NLRB Message No. 2:  The Supreme Court Ain’t the Boss of Me

In 20__, the Board issued its D.R. Horton decision, in which it held that employees could not waive their right to bring a class action under the NLRA. Earlier this year, though, the U.S. Supreme Court ruled in American Express v. Italian Colors Restaurant, that arbitration agreements should be enforced.  But the AmEx case was brought under antitrust law, not the NLRA, so it did not directly overrule D.R. Horton.  Nevertheless, many employment lawyers believe that the ruling in AmEx would effectively overturn the Board’s ruling.

Well, an ALJ disagrees. On Monday, a judge found that a mandatory arbitration agreement, which waived the right to pursue a class action, violated the the NLRA. Instead of following the Supreme Court’s direction as stated in the AmEx case, the judge ruled that she was bound by the Board’s decision in D.R. Horton unless and until it was overturned.

NLRB Message No. 3:  Your Business Is the Board’s Business

In a decision that shocked many employer’s lawyers, the Board affirmed the decision of an ALJ, which held that a confidentiality requirement violated the NLRA. Specifically, the employer’s mortgage bankers were required to sign employment contracts, which included a confidentiality provision that precluded those employees from disclosing certain personnel information, including: (a) “personal information of coworkers;” (b) home phone numbers or cellphone numbers; (c) addresses; or (d) email addresses. 

Again, the ALJ determined that this provision was overly broad in violation of the NLRA.  Most troubling to me is that the Board saw fit to take on language in a contract as opposed to in an employee handbook.  Delaware law heavily favors the enforcement of contracts, including employment contracts. The NLRB seems to take the position that the ability of parties to negotiate and execute contracts is irrelevant.

A Message for Employers

Although the recent decisions by the NLRB have been frustrating for employers (to put it mildly), there is a bright side. It may well be that the NLRB’s position has become so extreme that it has managed to get the attention of more and more employers.  And the attention has not been positive. If the NLRB continues in this direction, it may just result in more harm than the Board expects.

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