Hunton Employment & Labor Perspectives

Sitting as the lone dissenter on the National Labor Relations Board (NLRB) might seem like a futile exercise. Grinding away on opinions that are critiques of the law as stated by your colleagues can be disenchanting work. But as a former NLRB member, I can attest that dissents are also valuable tools for future board members and the courts. Indeed, one of my proudest moments as a lawyer came when a court of appeals reversed the board “for the reasons stated by Member Meisburg.”

A recent NLRB decision involving an employer’s work rules illustrates the value of a powerful dissenting voice. Since late 2010, the NLRB has been on a campaign to outlaw employer rules that, the board says, may be “reasonably” read to prohibit employees from engaging in activity protected by the National Labor Relations Act (NLRA). Such activity includes protesting working conditions or making efforts to form a union. Increasingly, the test seems to have morphed into one not based on the reasonable reading of a rule, but instead on whether any conceivable reading could “chill” protected conduct.

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