With union organization and membership at all time lows in the United States, the National Labor Relations Board is making a effort to stay relevant by pushing an agenda targeted on non-unionized workplaces.  Unfortunately, the Board’s positions, some of which are completely out of touch, may push it into irrelevance.

From its difficult to synthesize interpretation employer social media policies;its position that employer dispute resolution provisions requiring the individual resolution of employee complaints (rather than through collective or class actions) is illegal;  its contention that an employer’s "at-will" employment disclaimer contained in a handbook may be unlawful; and its recent pronouncement that employers requiring employees participating in an internal investigation maintain confidentiality may violate the National Labor Relations Act, the Board is taking controversial and irrational positions on longstanding employer practices (and legal practices in my opinion) to remain relevant.

In my opinion, the NLRB’s positions are becoming so extreme they they begin to test credibility of its analysis and decisions.  Like the boy who cried wolf, if the Board does not become more practical and sensible in its approach to the interpretation of the"protected concerted activity" sections of the Act, federal court’s reviewing those decisions may be unwilling to provide the Board any deference to is opinions thereby pushing the Board further into irrelevance.

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