Q&A with Michael Lauderdale
NLRB seeks to expand authority
in nonunionized workplaces
Q: Is it true the National Labor Relations Board is attempting to increase its regulation of nonunionized workplaces?
A: Unfortunately, for private nonunionized employers, the answer is “yes.” President Obama finally has been able to appoint a full five-member board. The NLRB has made clear that it will seek to expand its influence and authority into the workplace
Q: Doesn’t the NLRB only get involved in the formation of unions?
A: In the past, the NLRB primarily focused on assisting employees in the formation of unionized workplaces. However, under the guise of its mission to monitor and protect any and all employee speech that addresses “workplace conditions,” the NLRB is attempting to force non-unionized workplaces to back off from policies and procedures that were previously normal course of business.
Q: What types of policies is the NLRB focusing on?
A: The NLRB’s primary focus is on curtailing employers’ social media policies that it believes prevent employees from banding together. Simply put, the NLRB’s position is that social media policies can’t be used to deter an employee’s right to workplace speech both in and outside the workplace. Other focus areas are workplace investigation policies, use of email for nonbusiness purposes, dress codes and anti-gossiping policies.
Q: Dress codes? Can the NLRB really take the position that an employer can’t impose a dress code policy?
A: First, the NLRB isn’t the final say on any of these issues. At some point, a federal court will address many of these policy decisions. But yes, the NLRB has found that a dress code provision that prohibited employees who interact with the public from wearing nonemployer insignias or message clothing violated federal labor law. In this decision, the employee had worn a T-shirt that depicted a ball and chain and contained the word “SLAVE.” The NLRB also recently held that an employer that owned a baseball cap manufacturing plant could not ban an employee from wearing a baseball cap that contained insignias other than what the employer produced. The NLRB found that the employer’s rationale (i.e., safety reasons, reduction of gang activity, and to facilitate interaction with customers) wasn’t sufficient.
PAULA BURKES, BUSINESS WRITER