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NLRB continues to wage war on common employer policies

March 12, 2013

Article courtesy of SBAM Approved Partner ASE

By Michael J. Burns

As 2012 closed, the National Labor Relations Board (NLRB) continued to issue decisions challenging employer policies long accepted as standard in the workplace. In the most recent case, the Board found that several statements in DIRECTV’s employee handbook violated the National Labor Relations Act:

“Communications and Representing DIRECTV,” expressly instructs employees, “Do not contact the media.” Per the NLRB, this was a violation of Section 7 of the NLRA.  
DIRECTV’s “Public Relations Policy” states, in relevant part, “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.”  
“If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by telephone/ email, the employee should contact the security department in El Segundo, Calif., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.”    
This was deemed a violation of Section 8(a)(4) of the NLRA. That clause protects employees who file unfair labor practice charges or who provide information to the Board in the course of a Board investigation.
“Confidentiality,” instructs employees to “[n]ever discuss details about your job, company business or work projects with anyone outside the company” and to “[n]ever give out information about customers or DIRECTV employees.” Per the NLRB, this is a violation of Section 8 of the NLRA.
“Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.” Per the NLRB, this is a also violation of Section 8 of the NLRA.

Statements such as these have always been considered fairly common policy restrictions. They are intended to avoid problems associated with employees making uninformed or unauthorized statements about the company to news organizations and government agencies.

DIRECTV is a non-union employer. In the case at hand (DIRECTV Holdings, LLC and International Association of Machinists and Aerospace Workers, District Lodge 947, AFL–CIO. Case21–CA–039546 January 25, 2013) one of its employees was allegedly discharged for union organizing activity. The Board, in review of DIRECTV’s employee handbook and other policy statements, found that these statements chilled the employee’s right to engage in concerted protected activity including discussing information that is protected by the NLRA.

This latest NLRB decision adds to the uncertainty created in late January by the (federal) District of Columbia  Appeals Court. In a ruling, that court declared that the current NLRB did not have a legal quorum to conduct business, owing to contested “recess appointments” of three Board members that President Obama had earlier made. Arguably, the D.C. court’s decision invalidates many of NLRB’s rulings made before and since that decision. However, the Board has clearly chosen to ignore the D.C. Court’s ruling, apparently seeing it as the aberration of a single court. It appears to be going its merry way even as it appeals the decision to the U.S. Supreme Court, which will not be able to take it up for some time.

What does this mean for employers?
What it all means is that for at least the time being, employers will continue to be exposed to the risk of NLRB sanctions in certain kinds of disputes with their employees. If an employee who is the object of an adverse employment decision goes to the NLRB, and points to certain policies in the employee handbook, the NLRB could decide that the policy illegally restricts the employee’s organizing rights.

Therefore, it will be very important—and could, with little advance notice, become very urgent—for employers to review their handbooks. They need to read their policies as the current pro-labor NLRB would be likely to read them—they need to identify policies that a) might be construed as impeding employees’ rights to talk about terms and conditions of employment, or b) erroneously restrict employees’ understanding of their rights to make legitimate complaints to appropriate government or enforcement agencies.

SBAM’s partner ASE offers discounted handbook services to members.  Learn more.

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