Anyone who has followed the National Labor Relations Board (the “Board”) recently has probably noticed a strong trend. Not only has the Board been issuing strongly pro-union decisions in many areas, it also has issued many rulings in cases that involve employers and employees who are not unionized. From issues of employee confidentiality to social media policies to employee use of e-mail while at work, the Board has gone out of its way to apply and expand the employee protections of labor law outside the unionized arena.
In many instances, the Board’s decisions in this area can be quite surprising. Consider the following:
Triple D, LLC d/b/a Triple Play Sports Bar, 361 NLRB No. 31 (2014). In this case, the Board found that being fired for liking a Facebook post in which your boss is called an “a**hole” was illegal under federal labor law.
DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB No. 54 (2013). Here, the Board found a company policy prohibiting employees from contacting the media and requiring employees to refer all inquiries from the media to the communications department was invalid.
Fresh & Easy Neighborhood Market, 361 NLRB No. 8 (2014). And here, a confidentiality section of the employer’s policies instructed employees to “[k]eep customer and employee information secure” and to only use it “fairly, lawfully and only for the purpose for which it was obtained” was deemed improper.
Despite the far-reaching implications of some of the Board’s decisions dealing with the non-union workplace, many employers and employees are completely ignorant of their respective rights and obligations in this area. Lawyers are often not any better. Some employment law practitioners rarely consider the labor law implications when dealing with non-union employee discipline issues and traditional labor lawyers allow their expertise to stop at the doors of the union shop.
PBI has developed a basic level program, Unfair Labor Practices for the Non-Union Workplace, to try to explain and examine the application of federal labor law outside of the unionized arena. The program will take place on Wednesday, October 7, 2015.