Why Does the NLRB Get Involved in Non-Union Workplaces?

Although the National Labor Relations Board spends much of its time dealing with union vs. management issues, recent publicity about its rulings on social media in the workplace have reminded us that its jurisdiction extends into non-union environments. This post explains the source and contours of that jurisdiction.

The NLRB exercises jurisdiction over all private employers who participate in a minimum level of interstate commerce, except those who employ only agricultural laborers. The Board's Jurisdictional Standards page explains the standards. The National Labor Relations Act excludes all government employees from the Board's jurisdiction.

Section 7 of the NLRA (29 U.S.C. section 157) protects employees' right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."The right extends to those who are not union members and to workplaces with no union presence. To be protected under Section 7, the activity (1) must involve two or more employees acting together or a single employee acting on behalf of others (2) must benefit employees as a group and not just amount to a personal grievance, and (3) must not be malicious, reckless or otherwise unlawful. The NLRB finds the right important enough that it launched a website in June 2012 that is specifically devoted to the protection of concerted activity.

Here are some of the ways in which Section 7 has been held to protect employees from adverse action by their employers:

Social Media. Several decisions have taken employers to task for disciplining or firing employees based on comments posted on Facebook and other social media. The Board's General Counsel issued a report in May 2012 that distilled the state of the law in this area. The most recent Board decision on the subject found that a Chicago car dealer did not violate Section 7 rights when it fired a sales person for posting photos on his Facebook page because the action was not concerted. Karl Knauz Motors, Inc., Case 13–CA–046452 (Sep. 28, 2012).

Wage Discussions. Section 7 gives employees the right to discuss their wages and other terms and conditions of employment. Confidentiality policies that prohibit employees from disclosing such information are not permitted. For an example of a confidentiality policy that drew NLRB enforcement action, see Northeastern Land Services, Ltd., 560 F.3d 36 (1st Cir. (2009).

Civility Policies. A policy that bars employees from treating each other in an uncivil manner may chill Section 7 rights. For example, in KSL Claremont Resort, Inc., 344 N.L.R.B. No. 105 (2005), the Board held that a policy prohibiting "negative conversations" about associates or managers was unlawful, because employees could reasonably construe the policy to bar them from discussing with their coworkers complaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities.