The first month of the Trump administration has delivered quite a few headlines. What has been less publicized, however, is the fact that the National Labor Relations Board (NLRB) is still operating with a 2-1 Democratic majority. And unfortunately, that majority is continuing is to dissect employee handbooks looking for alleged violations of the National Labor Relations Act (NLRA), something that apparently will not stop until two new Board members are confirmed and common sense returns to the NLRB.
The Board’s unrelenting campaign against employee handbooks emanates from the agency’s wildly expansive reading of Section 7 of the NLRA, which says that employees have the right to engage in “concerted activity” for “mutual aid or protection.” Under Board precedent, a workplace rule is unlawful if an employee would “reasonably” think the rule prohibits protected activity.
The problem is that the NLRB seems to have adopted a dubious understanding of the word “reasonably.” As this blog has reported on numerous occasions, the NLRB’s fixation on parsing employee handbooks has resulted in a series of baffling decisions against employers. There are so many examples of these cases that a 2015 report by the Workforce Freedom Initiative couldn’t include them all.
The most recent example came at the expense of Verizon Wireless, which the NLRB knocked for the following provision in its employee handbook:
You should never access, obtain or disclose another employee’s personal information to persons inside or outside of Verizon Wireless unless you are acting for legitimate business purposes and in accordance with applicable laws, legal process and company policies, including obtaining any approvals necessary under these policies.
Most people would welcome a policy that ensures the protection of their personal information, which in this case included social security numbers, identification numbers, passwords, financial information, and residential telephone numbers and addresses. But most people do not serve on the NLRB.
In a decision issued February 24, the Board held that that this seemingly straightforward policy—and another one concerning potential conflicts of interest by employees belonging to outside organizations—violated the NLRA because “employees would reasonably read the Respondent’s broadly worded rule to prohibit them from discussing their terms and conditions of employment or disclosing personal employee information.”
When the Board’s crusade against the employee handbook began in earnest, this blog dubbed it bizarro world and for good reason. Unfortunately, the NLRB’s activist majority has provided many opportunities to use that phrase. One hopes that new NLRB members are coming soon and that they will make the bizarro NLRB a thing of the past.