Theater of the Absurd: The NLRB Takes on the Employee Handbook

Introduction

When Congress passed the National Labor Relations Act (NLRA or the Act) in 1935 to promote stability in labor relations, it created a quasi- judicial agency, the National Labor Relations Board (NLRB or the Board), and charged it with implementing the law. In subsequent decades, the NLRB functioned reasonably well with appointees from both political parties. Notwithstanding policy differences arising from different ideological perspectives, the NLRB served as the rational arbiter Congress seemed to have in mind. Indeed, many NLRB precedents have stood for years, if not decades, because of the Board’s efforts to balance the rights of employers, unions, and workers alike.

Unfortunately, in recent years the NLRB has changed. Rather than serving as an impartial referee, it has become dominated by a decidedly pro-union majority. These activist Board members have disregarded the overarching objectives of the NLRA and disrupted the careful balance that the Board has traditionally sought. Instead, this majority, along with the Board’s appointed General Counsel, have pursued a one-sided agenda at the expense of employers and workers.

One particular way the NLRB’s majority has transformed the agency is through adopting a wildly expansive reading of the NLRA’s protections in order to undermine sensible and widespread workplace policies. Through a series of decisions and official guidance, the NLRB has undertaken a campaign to outlaw heretofore uncontroversial rules found in employee handbooks and in employers’ social media policies—rules that employers maintain for a variety of legitimate business reasons. This study highlights several decisions in which the NLRB has found commonsense employee handbook policies to be in violation of the law. While it is not meant to be a comprehensive review of NLRB cases in this area of labor law, it offers a number of examples to illustrate how many of the Board’s decisions of late seem to run counter to any balanced reading of the NLRA and to simply fly in the face of common sense. In so doing, the report is intended to educate the business community, the media, and the broader public about the sweeping impact of the NLRB’s increasingly biased, and some would say irrational, policy agenda.