Labor: How the NLRB analyzes handbooks and policies

Even rules that don’t explicitly prohibit protected concerted activity can be unlawful

It has been almost three years since the first “Facebook firing” case hit the media and many employees were introduced for the first time to the National Labor Relations Board (NLRB), the National Labor Relations Act (NLRA) and the concept of protected concerted activity. A couple of years ago, most union-free employers paid little, if any, attention to decisions issued by the NLRB, believing for the most part that because their employees were not represented by a union, what happened at the board did not affect them. As more and more employers are learning, sometimes only as a result of an unfair labor practice charge, regardless of whether employees are unionized or not, Section 7 of the NLRA can have a significant impact on the way all employers operate, often on a daily basis.

With private-sector unionization at a 70-year low, the NLRB’s focus has shifted from what most would call its traditional functions (running elections and overseeing collective bargaining), to putting the spotlight on protected concerted activity. It seems that way because of the board’s recent initiatives to educate non-represented workers about their Section 7 rights. The board’s initiatives appear to be working, as more and more employees are becoming savvy about their rights, in their individual capacity, under the act.

Contributing Author

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Ruthie Goodboe

Ruthie Goodboe is a shareholder in the Detroit Metro office of Ogletree Deakins, an international labor and employment law firm representing management. She counsels and...

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