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By: Joyce M. Mocek
Over the last several months, the National Labor Relations Board (NLRB) has targeted employee handbooks and policies of both union and non-union employers, determining that their policies and procedures constitute “unfair labor practices.” The NLRB continues to expand its interpretations of the type of actions that constitute such practices, recently holding that dress code, personal hygiene and social media policies in a car dealership’s employee handbook were “unfair labor practices.”
Under Section 7 of the National Labor Relations Act (NLRA) employees have the right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….” Section 8 of the NLRA states that it shall be an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”
On March 18, 2015, the NLRB issued Memorandum GC-15004, a 30 page document that included provisions of employee handbooks and policies with specific examples of language that it determined was a violation of Section 7 of the NLRA. The NLRB applied a standard of what employees would “reasonably” believe to be an intrusion of their rights. These decisions attacked language such as “Be respectful of others and the Company” and held that general provisions such as this to be unlawful because they could be considered to ban criticism or negative discussions. Further expanding their reach, recently, the NLRB determined that a car dealership’s employees had a right to display union messaging and insignia in the workplace although the company’s handbook language prohibited such displays, and held that the company’s social media policy was too restrictive.
These decisions illustrate the continuing focus of the NLRB to target the employee handbooks and policies of both union and non-union employers, and the necessity to review handbook policies and procedures to ensure compliance with these requirements and decisions.