Is “Management Rights” An Oxymoron?

There was a time when employees had few protections and were subject to abuses by unregulated management.  For example:

  • Until the FLSA, employees could be required to work limitless hours without overtime or even a minimum wage.
  • Until Title VII of the Civil Rights Act of 1964, employees could be denied jobs, or fired, because of their race, sex color, religion or national origin, and they were.
  • Until the FMLA, employees who wanted time off to bond with a newborn child or care for a sick parent where told to choose between work or life, a Hobson’s choice.

These are only some of the laws that have made our society stronger and our workplaces fairer.  And, for the most part, the regulatory agencies stick to their mission of enforcing these laws.

But then we get to the NLRB, responsible for enforcing the NLRA.  At this point, it is hard to deny that the  NLRB has become more of an advocacy group for unions than a neutral body to adjudicate issues under the NLRA.

I say this not just with dismay over their rulings.  I say this also with sadness because I believe the NLRB is hurting hard working women and men.

As part of guidance from its General Counsel and cases decided by the NLRB itself, the NLRB has made clear that certain common restrictions and requirements imposed by employers may violate the NLRA depending on whether, in context, a reasonable employee would believe that the restriction or requirement interferes with the employee’s right to engage in concerted activity, that is, to discuss the terms and conditions of their employment.

What are some of the restrictions and requirements that monsters masquerading as managers are imposing that have caused trouble with the NLRB?

1. No one should be disrespectful.

2. Courteous is the responsibility of everyone.

3. Adopt a friendly tone when engaging on line.

4. Don’t disparage the Company.

5. Don’t defame the company or its employees.

What happens when these rules are violated?  Customers may flea and with them jobs.

But now we have a new quorum at the NLRB. Will management rights still be an oxymoron?

I sincerely hope the new appointees are more balanced and less ideological. I am hopeful but not confident.

At a very minimum, the members of the minority party can write compelling dissents to be used upon appeal to the circuit courts.  Many circuit courts have struck down NLRB positions as being too extreme.

Labor day was not just about unions.  It  also honored the 90 percent of the private sector that has rejected unionization.

On every day, we should be thankful for the work of all employees. We also can hope that the NLRB will understand that only healthy companies create jobs and that some of their extreme positions result in less healthy companies.  

Follow me on Twitter at: @Jonathan__HR__Law




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