A Capehart Scatchard Blog

NLRB Strikes Again!

By on January 8, 2016 in Uncategorized with 0 Comments

As many of you know, the NLRB has been incredibly active over the past several years in getting its message across to employees that the NLRA protects their concerted workplace activities even where the employee does not work in an already unionized work setting.  Such efforts will likely continue, especially after a prominent federal circuit court of appeals in late November, 2015 upheld the NLRB’s finding that certain employer workplace policies by their very existence had a “chilling effect” on an employee’s ability to participate in protected concerted action under Section 8(a)(1) of the NLRA.

In Hyundai Am.  v. NLRB, 204 LRRM 3557 (D.C. Cir. 2015),  a former Hyundai  employee claimed that she was wrongfully terminated because of her participation in certain protected concerted activities in violation of federal labor law requirements.  When the NLRB decided to bring suit against  Hyundai, it also claimed that the employer maintained certain work rules (some as part of the company’s employee handbook) that “on their face violated Section 8 (a)(1).”  When the case was ultimately administratively tried, the wrongful termination claim was rejected, with the ALJ finding that the employee would have been fired even had she not violated any of the challenged rules.  Nonetheless, the ALJ and subsequently the NLRB itself upheld the conclusion that the challenged rules were indeed violative of the NLRA because their mere existence had a chilling effect on an employee’s ability to engage in protected concerted actions under Section 7 of the Act.

Hyundai subsequently appealed this ruling to the Federal Circuit Court of Appeals for the D.C. Circuit.  The court ultimately affirmed the finding that three of the four challenged rules violated the NLRB because of the chilling effect that the rules had on the possibility of employee collective action.  The rules that were struck down as violating the NLRA included : (1) an oral blanket confidentiality rule prohibiting employees from revealing information about matters under investigation; (2) a handbook rule placing limitations on the use of the Company’s electronic communications systems that concluded with the requirement that “employees should only disclose information or messages from theses [sic] systems to authorized persons”; and (3) a handbook rule allowing disciplinary action, including termination, “[f]or performing activities other than Company work during Company hours.”   A fourth rule that was challenged, an “open door” type complaint procedure contained in the Company handbook, was found to not be a violation of the Act.

With decisions of this kind upholding the NLRB’s right to continue its scrutiny of employer policies as violations of the concerted activity protections of the NLRA, it is important that employer’s rigorously review their own polices to insure that such polices would pass muster if ever challenged by the NLRB.  With help from an experienced labor and employment lawyer, employers can maneuver through the legal landmines being set by the NLRB as it continues in its efforts aimed at facilitating greater employee participation in workplace concerted activities.


About the Author

About the Author:

Mr. Smith is Co-Chair of Capehart Scatchard's Labor & Employment Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitrations, drug testing, and employment related contract issues.


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