National Labor Relations Board

Author: Melissa Gonzalez Boyce, XpertHR Legal Editor

Revitalized and poised with a full Senate-confirmed quorum for the first time in a decade, the National Labor Relations Board (NLRB) is making headlines for its aggressive and often controversial steps to remind union and non-union employers that the National Labor Relations Act (NLRA) protects the rights of individuals to do much more than unionize. In fact, it is proving very difficult to keep up with the NLRB's ever-evolving definition of what it considers "protected activity" under the NLRA.

One strategy that is sending shockwaves across non-unionized workplaces is the NLRB's targeting of the standard employee handbook as a vehicle to ensure that everyday policies and practices in no way restrict or "chill" an employee's right to engage in or discuss terms and conditions of employment or other activity deemed protected under the NLRA. In so doing, the NLRB is scrutinizing common workplace policies, including social media and confidentiality policies, to determine whether they are so vague and overbroad that a reasonable individual may believe adherence to the policy will infringe on his or her right to engage in certain activities. As a result, it is critical that an employer fully understand what types of discussions or activity are deemed "protected", whether it takes place in a lunch room, workplace parking lot or social media outlet.

Also, in hopes of fighting dwindling unionization rates, the NLRB adopted new rules that speed up the union election process and, therefore, limits an employer's ability to challenge a union's election campaign. An employer should also take note of the NLRB's campaigns to promote awareness of NLRA rights among union and non-union employees as clearly evidenced by its new website and free mobile app.

Amidst other controversial and union-friendly decisions, the NLRB issued a groundbreaking ruling in Ferris Industries of California, Inc., +2015 NLRB LEXIS 672 (N.L.R.B. Aug. 27, 2015) where the NLRB overruled a 30-year joint-employer standard and found that it will no longer require direct and immediate control over terms and conditions of employment to establish a joint employer relationship. The NLRB, instead, will now find a joint employer relationship if the employer has indirect control over terms and conditions of employment or simply reserves the right to exercise such control. A party determined to be a joint employer will be subject to the union election process, collective bargaining obligations and liability risks for unfair labor practices.

XpertHR offers the following Tools and resources to help an employer understand its responsibilities and obligations under the NLRA as well as the manner in which it is being targeting by the NLRB.


Determine if a Non-Union Employee's Activity is Protected under the NLRA


Determine Whether Employee's Conduct is Protected Under the National Labor Relations Act


Union Avoidance Policy

Solicitation and Distribution Policy

Employment Law Manual

National Labor Relations Board

Unfair Labor Practices

How To

How to Determine Whether an Employee's Activity is Protected Under the National Labor Relations Act (NLRA)

How to File an Unfair Labor Practice Charge with the NLRB

Supervisor Briefings

Handling Questions about Unions and Union Organizing - Supervisor Briefing

Nondistribution and Nonsolicitation Policies - Supervisor Briefing


What is considered protected concerted activity under the National Labor Relations Act (NLRA)?

Does a non-union employee have rights under the National Labor Relations Act (NLRA)?

Are Facebook posts, tweets, and use of other social media protected by the National Labor Relations Act (NLRA)?

What rights does an employer have under the National Labor Relations Act (NLRA)?

May an employer appeal a decision issued by the National Labor Relations Board (NLRB)?

What penalties may an employer face if the National Labor Relations Board (NLRB) finds it committed an unfair labor practice?