Employers with nonunionized workforces once went about their business without giving much thought to the National Labor Relations Board (NLRB). But with union membership in decline, a more activist Board is branching out, and now even nonunion employers need to be on guard.

As union membership dwindles, the NLRB is emphasizing that the National Labor Relations Act (NLRA) is meant to cover not just union workers but nonunion workers as well. So the Board is taking a close look at the policies and practices of all kinds of employers, union and nonunion alike, said Kevin McCormick, chair of the labor and employment section at the Baltimore law firm of Whiteford, Taylor & Preston, during the Advanced Employment Issues Symposium (AEIS) 2012.

Policies under the microscope
The NLRB has been especially vocal lately about social media policies, with the NLRB’s acting general counsel issuing three guidance memos on how employees’ use of Facebook and other social media outlets often can constitute “concerted activity” that is “protected” under the NLRA.

As recently as May 30, NLRB Acting General Counsel Lafe Solomon issued a report on seven social media cases filed before the Board. He found parts of six of the seven policies unlawful.

“If you have a social media policy, you have to be very, very careful about it,” McCormick said, adding that if employers are looking for a “safe harbor” for such policies, they may consider including a line explaining that nothing in the policy is designed to violate anyone’s rights under Section 7 of the NLRA, the provision that ensures employees can discuss and act together to improve their pay, working conditions, and other terms and conditions of employment. Such a statement still may not satisfy Solomon, though, McCormick says.

Some seemingly innocuous policies have not passed muster under NLRB scrutiny. One ruling, issued in September, went against the social media policy of warehouse club giant Costco. The company’s policy said in part, “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 ruled that employees could interpret that language as discouraging them from exercising their Section 7 rights. “In these circumstances, employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of [Costco] or its agents),” the Board decision states.

The NLRB also is taking a close look at other policies and employer practices once considered legally sound under the NLRA. Now, at-will-employment disclaimers have unleashed “another lollapalooza” from the Board, McCormick said. The NLRB fears that language in such policies can be interpreted as telling workers they have no alternative to the employer’s at-will policy when in fact they could change their at-will status by bringing in a union, which would negotiate a contract, thereby negating at-will status.

Mastering HR Report: Labor and Organizing

Pointers for employers
Nonunion employers, which may not be accustomed to NLRB scrutiny, need to keep the following points in mind, McCormick said:

• Employers need to pay particular attention to how social media policies are worded, guarding against language that could be seen as restricting employees’ rights under Section 7 of the NLRA.
• Although at-will disclaimers have drawn some NLRB criticism, McCormick advises employers to keep them because the greater risk is that an employee can claim he was promised a job for life.
• Policies requiring employees to keep internal investigation details confidential need to be made with care because the NLRB has said that certain confidentiality policies can unlawfully interfere with employees’ ability to talk to coworkers. In July, the Board ruled against one employer’s practice of asking employees to keep the contents of an internal investigation confidential while the matter was being decided.
• McCormick urges employers to educate their employees on labor relations matters and union organizing tactics. “Don’t assume you won’t get organized,” he says. Instead, employers need to “anticipate the worst” and develop an action plan to deal with union organizing.