Ive

been practicing in the labor and employment field for almost twenty years now and I cannot recall a time before now when the National Labor Relations Board has been as active in expanding workers rights. Perhaps it is because over the last twenty years the NLRB was filled with individuals who leaned more toward protecting the commercial interests of businesses than the interests of workers. But over the last couple of years, the pendulum has begun to swing in the direction of worker protections. The shift first became apparent a couple of years ago when the Board issued an opinion saying that certain statements made on social media which were critical of an employer were protected, even if the employer was non-union, and even if the employer had a policy prohibiting discussion of company policies on social media. The reasoning was that because the NLRA protects workers rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, discussion of company policies which affect terms and conditions of employment is protected activity. More recently, the Board has issued opinions which urge that at-will employment statements in a company handbook or policy manual may be unenforceable because they may be interpreted by an employee to mean that joining or organizing a labor union in the face of such language would be futile. In a case decision issued last week, the NLRB issued a decision against Costco. The case revolved around a policy statement which read that statements posted electronically that damage the Company, defame any individual or damage any persons reputation, or violate the policies outlined in the Costco Employee Agreement may be subject to discipline up to and including termination of employment. On its face, it seems reasonable that a company would want to protect its good name and its goodwill in the community by limiting damaging information which is put into the public sphere. If, for example, an employee posted that the employer was unfair to employees because it refused to allow them to take bathroom breaks as needed, but the employer was simply enforcing policies to ensure consistent productivity from its workers, it might be reasonable for the employer to expect to have the controversy resolved outside of public view. The NLRB found however that it was a violation of Section 7 of the NLRA, the real heart of the NLRB, to limit the online activity of employees who challenge work rules, because these types of limitations may negatively impact employees rights to engage in concerted activities for the purpose of mutual aid or protection. Some may read this and throw up their hands about an activist NLRB. Others may say that finally workers are getting the protection they need. I look at it differently. I think the interpretation by the NLRB is reasonable. But I also think that these more recent liberal interpretations can be the catalyst toward improving labor management relations with or without the presence of a union. The recent rulings should compel employers to put policies in places to allow for fair resolutions of disputes internally. If employees think no system exists, or

that the system is rigged, they are more likely to go public with their complaints. But if they feel that they can have their concerns understood and resolved, they are less likely to go public, and more likely to work together with the employer to solve problems. And that to me seems like a legitimate use of NLRB power. Eric Brown is an attorney from Waterbury. He can be reached at 203-676- 9110.