NLRB Mission Creep

Jan 8, 2013

This post first appeared on the Workforce Freedom Initiative blog

An editorial in the Wall Street Journal highlights a topic about which the Workforce Freedom Initiative has been writing for some time: the overreach of an activist majority at the National Labor Relations Board (NLRB).  As James Madison observed, “it will not be denied that power is of an encroaching nature,” and the NLRB’s behavior over the last few years has proved his point.  Indeed, the Board’s majority and Acting General Counsel have sought to expand their power over every facet of American business within their reach.

To cite one example illustrated by the Wall Street Journal editorial, the Board has used a relatively obscure provision of the National Labor Relations Act (NLRA) giving employees the right “…to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” to promote an expansive interpretation of its jurisdiction. This interpretation has seen the NLRB launch a relentless crusade to overturn numerous well-established management practices it dislikes, at both unionized and non-unionized businesses, regardless of their connection to the core purpose of the NLRA.

Acting General Counsel Lafe Solomon has addressed the use of social media in particular and has issued three reports (see here, here, and here) in his effort to apply the NLRA to employers’ rules about comments made online at sites such as Facebook. Likewise, the Board itself has issued several bizarre rulings striking down provisions in employee handbooks, even provisions as benign as prohibiting employees from disclosing their co-workers’ personal health information and Social Security numbers.

The NLRB’s stance appears to be that employers should be rendered powerless to stop their employees from making disparaging remarks or speaking critically of their employers or co-workers in the public forum. To that end, it is using its power to outlaw rules that most businesses would consider quite sensible, and it has issued a series of decisions against various policies that prohibit employees from engaging in online harassment, using company computers to post disparaging remarks, and speaking to the media without authorization, to name just a few examples. So it is that employers’ legitimate attempts to keep a civil workplace or protect a brand name now run afoul of the law, or at least the NLRB’s version of it.

The editorial also mentions another area of Board mission creep whereby it has tried to ban companies from using arbitration agreements to restrict expensive class-action lawsuits, which are the bane of many employers’ existence. Thankfully this piece of activism has been ignored by several courts, but it nevertheless represents another effort to stop employers from taking reasonable actions to preserve their businesses. 

Power being what it is, James Madison also opined that “it ought to be effectually restrained from passing the limits assigned to it.” Unfortunately, the NLRB now recognizes few practical limits, and seems poised to misuse its power for as long as it can.

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