Around 80 years ago, Congress created the National Labor Relations Board to bring stability to labor relations in the private sector. The current iteration of the Board is doing everything in its power to disrupt labor relations and create hostile workplaces.
A variety of decisions by NLRB has dramatically expanded what is known as “protected concerted activity” to the point employers are unable to manage employees from engaging in defamation, intimation, and harassment.
Protected concerted activity is defined by the NLRB as giving “employees the right to act together to try to improve their pay and working conditions.” Basically, it amounts to protecting union organizing activity.
In 2004, the case Lutheran Heritage Village determined what employer policies interfere with employee right to engage in protected concerted activity:
(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to Section 7 activity; or (3) the rule has been applied to restrict Section 7 activity.
But a recent report by the U.S. Chamber of Commerce, “Theater of the Absurd: The NLRB Takes on the Employee Handbook,” questions whether the NLRB has “adopted a new definition of the word ‘reasonably.’”
The report goes on, “The NLRB has gone to outlandish lengths to find commonsense workplace policies unlawful for violating Section 7 rights, even scouring employee handbooks to find purported violations in cases where the handbook has nothing to do with the underlying charge.”
Well, the latest scene of the NLRB’s “Theater of the Absurd” can be found in the recent decision and order involving the employee handbook of the William Beaumont Hospital in Michigan.
As Politico reports, the NLRB decided that “William Beaumont Hospital in Michigan violated federal labor law by promulgating rules prohibiting ‘threats, intimidation, harassment,’ rude or condescending behavior and verbal comments or gestures that ‘exceed the bounds of fair criticism.’”
Yes, that is correct, employers, even hospitals, cannot create workplace policy that bans employees from threatening, intimidating, or harassing other employees!
In dissent, NLRB member Phillip Miscimarra calls to overturn the Lutheran Heritage Village decision, which has allowed the Board to upend a number of employer policies that simply ask employees to be respectful to each other and customers.
More expansive reform of the NLRB is needed than just overturning the Lutheran Heritage Village case. The NLRB’s opinion of protected concerted activity is just one of many reasons that the NLRB has outlived its usefulness.
While the federal agency was created to act as an impartial Board representing the public interest in labor disputes, it has transformed into the litigation-arm of Big Labor. It is time to rid labor relations of the NLRB’s influence and transfer its cases to an Article II court.