Scary Stories of Real National Labor Relations Board Decisions

Scary Stories of Real National Labor Relations Board Decisions

Terrified BusinessmanHalloween is the time for scary stories of ghosts, goblins, monsters and all manner of things that give us nightmares.

I’ve got my own scary tales for you this Halloween:   Stories of recent rulings by the National Labor Relations Board (NLRB) that should frighten even the most well intentioned business person!

The NLRB doesn’t just oversee unionized workplaces:

Many business people think the NLRB doesn’t affect them if their workplace isn’t unionized.  And for years that was the case.  But recently the NLRB has expanded its scope to protect certain employees’ rights, beyond the right to organize a union.

The NLRB’s interest lies in all employees’ rights to engage in “concerted activity,” often referred to as Section 7 rights.  They define this as “when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.”  Here are some examples of recent rulings for your consideration.

Banner Estrella Medical Center

In the widely written about NLRB decision in the Banner Estrella Medical Center’s case, they ruled that the company violated employees’ rights when they asked those that were interviewed in connection with an internal investigation to not discuss the matter with their co-workers while the investigation was ongoing.

This common HR practice must now be revisited and revised in order to be in compliance.

TT&W Farm Products

The employee handbook of TT&W Farm Products was found to be non-compliant by the NLRB for prohibiting employees from walking off the job without permission from their supervisor.  This was found to violate their rights to strike or hold work stoppages, regardless of whether the company had a union.


Closer to home, Costco’s social media policy made news when it came under scrutiny by the NLRB. Costco told its employees they’d be subject to discipline and possibly termination if they made online statements that could damage Costco.

The NLRB states that this overly broad restriction violates an employee’s right to engage in protected activity, such as discuss their working conditions.

Karl Knauz Motors

Then there’s the Karl Knauz Motors case, in which an employee was terminated for making fun online about the quality of the food served at an employee event. The NLRB saw the food as part of the employee’s compensation and said complaining about it was protected activity.

And they went one step further.

They took a look at all of the policies in the company’s employee handbook.  The company had a policy requiring employees to be courteous to each other, customers, vendors, and suppliers.  To not be disrespectful or use language which would injure the image or reputation of the company.

Seem like a good idea, right?  The NLRB says no.  They said this is too broad, and restricts employees’ rights to complain about their working conditions.

Flex Frac Logistics

Another head-scratcher was the decision regarding Flex Frac Logistics, wherein the NLRB invalidated the company’s at-will policy, because their employee handbook prohibited employees from disclosing confidential information to outside parties, which included personnel information.

The NLRB interpreted this to mean that employees could not discuss their working terms and conditions of employment with union reps, violating the NLRA.

American Red Cross and Hyatt Hotels

And speaking of at-will clauses, let’s not forget the American Red Cross and Hyatt Hotels cases.  The Red Cross’s at-will clause stated that this at-will status couldn’t be altered in any way.  And Hyatt’s stated that it could only be altered in writing by a member of senior management.

In both circumstances, the NLRB found these statements to violate an employee’s right to organize and protect their own employment status.

What do the NLRB’s decisions mean for our businesses?

All of these decisions may be confusing, and certainly may be perplexing, but one thing is certain — the NLRB has extended itself well beyond the arena of unionized workplaces and is now a player in all of our workplaces.

Besides just being scared to death, what is a well intentioned employer to do to stay out of trouble?

The best advice I have is to hire a good employment lawyer and have them sit by your side for every action and decision you make.  If you can’t afford that, run every employment related document and decision past them.

And, perhaps, at the very least, put a disclaimer on every employment related policy that states there is no intent within the policy to interefere with an employee’s Section 7 rights, including their rights to discuss wages, hours, or other terms and conditions of employment.

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