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Some observers say NLRB is churning out rulings to stay relevant

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Observers say the National Labor Relations Board's July 30 ruling on confidentiality comes after board rulings on the use of social media in the workplace and positions it has taken against handbook language that suggests employees' at-will status cannot be changed.

On May 30, the NLRB issued its third report on social media policies, in which it cited six cases where it contended that employers' policies and rules were overbroad and unlawful. The NLRB had issued previous reports on social media in August 2011 and January of this year.

And in a February ruling involving the Arizona Blood Services Region of the American Red Cross in Tucson, an administrative law judge held an agreement in its handbook that employees were required to sign stating that an “at-will relationship cannot be amended, modified or altered in any way” was “overly-broad and discriminatory.”

Many observers describe these rulings as being part of a strategy to remain relevant in today's workforce, where just 7% of workers in the private sector are unionized.

Jonathan T. Hyman, a partner with Kohrman Jackson & Krantz P.L.L. in Cleveland, said the board “is really sticking its nose into issues it really doesn't understand, and I think the NLRB should not meddle into these types of common” human resources practices.

However, Susan Davis, a partner with Cohen Weiss & Simon L.L.P. in New York, which represents the interests of labor and individuals said it is “one of the best-kept secrets in the world that the NLRB applies equally strongly in a nonunion setting, and a fair amount of what the Obama board has done is reiterate employees in a nonunion setting have rights.” This is true regardless of what percentage of the workforce is unionized, she added.

An NLRB spokeswoman had no comment.

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