Followers of Roetzel Recap: Labor Relations know that the current Administration’s National Labor Relations Board has increasingly found handbook policies that violate Section 7 of the National Labor Relations Act. For example, it has in the past ruled at-will policies, arbitration clauses, confidentiality clauses, some open door policies, and other stalwarts of handbooks suddenly run afoul of the law. In many situations, the Board “stumbled” upon these policies while investigating other allegations of unfair labor practices.
One company finally refused to turn over its handbook, even after the Board subpoenaed the document, since the unfair labor practice allegation did not make specific reference to any illegal handbook provision. The company asserted that the subpoena represented a “fishing expedition” or search for “some completely unrelated section of the handbook that . . . can be argued to somehow infringe on employee rights.” I agree with this position. And although I, too, have refused to turn over handbooks, I was never faced with a subpoena to do so.
Ultimately, the Board ruled that the company must turn over the handbook, but that, as a general principle, handbooks cannot be used to expand the scope of investigation or create new unfair labor practice charges. Specifically, Section 11(1) of the Act describes the agency’s subpoena power but limits its exercise to a particular “matter under investigation or in question.” The statute “does not give the Board authority to initiate its own unfair labor practice proceedings.” While this provides some comfort, I’m not sure I’ll willingly turn over entire handbooks – or entire collective bargaining agreements – to the NLRB, for once done, those documents become public records.