PICKETING FENCES: HOW NON-UNION WORKPLACES ARE BEING WEAKENED BY THE NLRB
I.INTRODUCTION………………………………………………………………………...1
II.HISTORY OF THE NATIONAL LABOR RELATIONS ACT AND THE NLRB
III.THE OBAMA BOARD AND GENERAL COUNSEL GRIFFIN
IV.PROTECTED CONCERTED ACTIVITY
V.HANDBOOK DECISIONS
A.Conflict of Interest Rules………………………………………………………………4
B.Confidentiality of Workplace Investigations……………………………………5
C.Arbitration Agreement……………………………………………………………….. 6
D.Confidentiality of Employee Contact Information
E.Use of Employer Logo
F.Embarrassment of the Company
G.GPS Tracking Device in Investigations
H.Workplace Recordings
I. Union Dues Checkoff
J. Distribution
VI.JOINT EMPLOYER STANDARD……………………………………………………10
VII.AMBUSH OR “QUICKIE” ELECTIONS
VIII.PRACTICAL ADVICE TO PROTECT THE COMPANY
IX.CONCLUSION
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PICKETING FENCES: HOW NON-UNION WORKPLACES ARE BEING WEAKENED BY THE NLRB
I.INTRODUCTION
The National Labor Relations Board (“NLRB” or “the Board”) continues to issue decisions interpreting employers’ handbook provisions, in both union and non-union environments, with far reaching implications. These decisions have resulted in interpretations of seemingly straightforward, common-sense policies in ways that were not intended, and in ways that impact an employer’s ability to regulate its workforce and operate its business. The NLRB also recast the joint-employer standard, and in conjunction with a broadened view of bargaining units, the quickie election rules, and greater employee access to an employer’s email system for non-business purposes, employers are at a great disadvantage in protecting its workforce from unionizing efforts. In this article, we will review some of the NLRB’s decisions and provide practical steps that may assist employers in leveling the playing field.
II.HISTORY OF THE NATIONAL LABOR RELATIONS ACT AND THE NLRB
In 1935, Congress enacted the National Labor Relations Act (“NLRA” or “the Act”). Its purpose is to limit industrial strife among employers, employees, and labor organizations which could hinder the United States economy. The statute defines the rights of employees and employers, and prohibits certain practices on the part of labor and management that are harmful to the general welfare.
The NLRA gives employees the right to organize and to bargain collectively with their employers through representatives of their own choosing or not to do so. To ensure that employees can freely choose their own representatives for the purpose of collective bargaining, or choose not to be represented, the Act establishes a procedure by which employees can exercise their choice at a secret-ballot election conducted by the NLRB. Further, to protect the rights of employees and employers, and to prevent labor disputes that would adversely affect the rights of the public, Congress has defined certain practices of employers and unions as unfair labor practices.
The NLRA is administered and enforced principally by the NLRB and the General Counsel acting through regional and other field offices located in major cities in various sections of the country. The General Counsel and the staff of the Regional Offices investigate and prosecute unfair labor practice cases and conduct elections to determine employee representatives. The five-member Board decides cases involving charges of unfair labor practices and determines representation election questions that come to it from the Regional Offices.
III.THE OBAMA BOARD AND GENERAL COUNSEL GRIFFIN
The Board’s five public members serve five year terms. Each member of the board is nominated by the President and must be confirmed by the Senate. The President also selects one of the members to serve as Chairman. Traditionally, the Board will have three members who are of the same party/ideological persuasion as the President, and the remaining two members are from the opposition party. Usually, this means that if the President is a Democrat, the three members who have the controlling majority are usually from a labor union or academic (and union-friendly) background. The two remaining members would be management-friendly individuals such as management-side labor attorneys or business leaders. The Board’s General Counsel’s background also will be like that of the majority side, and he or she also must be nominated by the President and confirmed by the Senate.
Not surprisingly, the current Board has a majority that could be considered pro-union or labor friendly. The current Chairman, Mark Gaston Pearce, was a Board attorney and a union/plaintiff attorney. Member Kent Hirozawa also began his career as a Board attorney and then became a partner in a firm representing unions, workers and employee benefit funds. Member Lauren McFerran served as Chief Labor Counsel for the Senate Committee on Health, Education, Labor, and Pensions and previously served as Senior Labor Counsel to Senators Ted Kennedy and Tom Harkin. The Board’s General Counsel, Richard F Griffin, Jr., served as General Counsel for the International Union of Operating Engineers for most of his career. The lone minority member is Philip A. Miscimarra, who was a management-side labor and employment attorney with a private firm prior to his appointment. Minority member Harry I. Johnson, III’s term expired on August 27, 2015, and he has not yet been replaced.
IV.PROTECTED CONCERTED ACTIVITY
Section 7 of the NLRA provides employees, including those who are not union members, the right to engage in union organizing as well as "other concerted activities" for "mutual aid or protection." Historically, “other concerted activities” have included such things as complaining about management personnel and the company itself, and discussions involving wages, hours and working conditions. The NLRA protects union and non-union employees who act together in mattersrelated to the terms and conditions of their employment. This can include group activity (a "group" is defined as more than one employee), or even the activity of a single employee, if the employee is acting on behalf of a "group" or preparing for "group" action. Thus, an individual who is “seeking to initiate group action” or acting with the “purpose of furthering group goals” may be found to be engaging in protected concerted activity. For example, an NLRB panel, by a 2-1 vote in200 E. 81st Rest. Corp., recently found that a restaurant server acting alone engaged in protected concerted activity when the server filed a lawsuit. The New York City restaurant allegedly fired the server for filing a putative collective action alleging violations of the minimum wage and overtime requirements of the Fair Labor Standards Act. Although no one joined him in the lawsuit, the Board panel majority found that the legal claim was “concerted” because it was made, not only on behalf of the plaintiff, but also on behalf of unnamed others
As we have seen in the Board’s decisions, protected concerted activity has become a big concern, in light of the Internet and social media, which make it so much easier for employees to complain "in concert," and for employers to find out about it. Anti-employer, including anti-supervisory, comments on Facebook, Twitter, and personal blogs are not uncommon. Further, many of these posts are protected under the Act.[1]
V.HANDBOOK DECISIONS
A.Conflict of Interest Rules
In Remington Hotel Corp., the NLRB found that the employer’s conflict of interest rule violated the NLRA. The handbook provision stated that “I understand that a conflict of interest with the hotel or company is not permitted.” The Board invalidated the rule, noting that an employee could reasonably construe it as prohibiting Section 7 activity. While employers may have conflict of interest policies, they must be very carefully worded. For example, in the General Counsel’s (“GC’s”) Memorandum issued in March 2015 regarding employer rules, the General Counsel noted that conflict of interest rules that provided specific examples may be lawful, such as: “[a]s an employee, I will not engage in any activity that might create a conflict of interest for me or the company,” where the policy devoted two pages to examples, such as “avoid outside employment with a customer, supplier, or competitor, or having a significant financial interest with one of these entities.” Another example from the GC’s Memorandum that was found to be lawful was the following: “[d]o not ‘give, offer or promise, directly or indirectly, anything of value to any representative of an Outside Business,’” where “Outside Business” was defined as “any person, firm, corporation, or government agency that sells or provides a service to, purchases from, or competes with the Employer.” Examples of violations included holding an ownership or financial interest in an “Outside Business” and accepting gifts, money or services from an “Outside Business.”
B.Confidentiality of Workplace Investigations
On June 26, 2015, the NLRB, in a 3-2 decision, decided that employers are normally required to provide confidential witness statements to unions that request them in connection with the processing of grievances. This decision, American Baptist Homes of the West dba Piedmont Gardens, applies only to refusals to supply witness statements that occur after the date of the decision, because the Board recognized that it was overturning precedent that had existed since 1978.[2] Even under this decision, an employer does not have to produce such statements if it can establish that it has a legitimate and substantial interest in confidentiality that outweighs the union’s need for the statements. However, the Board explained that “establishing a legitimate and substantial confidentiality interest requires more than a generalized desire to protect the integrity of employment investigations.” An employer must establish that there is some need for witness protection or some danger of destruction of evidence, fabricated testimony, or a cover-up. Even if such a need exists, the employer must seek an accommodation that would allow the requestor to obtain the information it needs while protecting the party’s interest in confidentiality. The Board majority contended that the parties could bargain over an accommodation. Employers must tread carefully in denying a union’s request for such statements. However, this decision appears to ignore the realities of workplace investigations, where assurances of confidentiality are often necessary in order to obtain relevant information from witnesses who are otherwise reluctant to state facts “on the record.”
In Banner Health System, the Board ruled that an employer cannot categorically instruct employees involved in an internal investigation to keep the investigation confidential. The majority found that employees have a right to discuss disciplinary investigations among themselves and that employers wishing to maintain confidentiality can do so lawfully only if they show through objectively reasonable grounds that a lack of confidentiality will compromise the integrity of the investigation.
C.Arbitration Agreements
The struggle between the NLRB and the federal courts regarding the enforceability of arbitration agreements which include class action waivers continues. On December 14, 2015, the U.S. Supreme Court ruled, in a non-employment case, that DirecTV could avoid a class-action lawsuit over early termination fees and could force customers into private arbitration. In October 2015, the U.S. Court of Appeals for the Fifth Circuit held that an employer does not commit an unfair labor practice by requiring employees to sign an arbitration agreement which includes a waiver to pursue class or collective actions in any forum. However, in December 2015, the NLRB issued 16 rulings that adhered to its view that employers commit an unfair labor practice when they use mandatory arbitration agreements which include a waiver of class or collective actions, regardless of whether the agreement includes a provision for employees to opt out of the waiver. Given this continued struggle in this area, employers who are considering using arbitration agreements, or who do use such agreements, should consult with their counsel regarding the effective and lawful use of such agreements.
D.Confidentiality of Employee Contact Information
In May 2015, an Administrative Law Judge (or “ALJ”) decided that an employer’s handbook policies restricting the disclosure of personal information about employees, including names and home and office contacts, were unlawful. The ALJ held that this restriction violated employees’ rights to discuss their terms and conditions of employment and to notify a union about other employees who might be interested in joining a union.
E.Use of Employer Logo
In the same decision regarding the restriction on the disclosure of employee contact information, the ALJ also found that a rule prohibiting employees from using the employer’s logo was unlawful, as it could be viewed as restricting employees from using the logo in employee communications.
F.Embarrassment of the Company
In September 2015, an ALJ invalidated a handbook policy that prohibited employees from embarrassing the company over the Internet. The ALJ found that the rule violated a presumption that employees can use employer-provided email on nonworking time and that embarrassment as a cause of discipline was overbroad.
G.GPS Tracking Device in Investigations
On October 15, 2015, the NLRB’s Division of Advice recommended that an unfair labor practice charge be dismissed regarding the employer’s use of a GPS tracking device in the investigation of an employee, where the employer did notbargain over the use of the device. While employers normally would have an obligation to bargain over the use of such devices to monitor its employees, bargaining was not required on the specific facts of this case. It was established by the employer that the union was aware of and had no objection to the employer’s use of a private investigator (“PI”) to follow employees suspected of stealing time and using such results in the disciplinary process. The employer retained a PI to follow an employee suspected of stealing time, and it also placed a GPS tracking device on the employee’s truck during the days the PI followed him, to ensure that the PI could maintain and regain view of the employee. The Division of Advice noted that employers have a duty to bargain over a unilateral change in terms and conditions of employment if that change is a material, substantial and significant change. The Division specifically noted in this case that there was an established practice of retaining a PI to follow employees in these situations. The information obtained by the GPS tracking device was used in conjunction with the PI’s personal observations and provided the same information that he could obtain by following the employee’s vehicle. The Division noted that the GPS tracking device provided a “mechanical method to assist in the enforcement of an established policy.”
H.Workplace Recordings
On December 24, 2015, a divided panel of the NLRB rejected the recommended decision of an ALJ and found that two of Whole Foods’ policies restricting workplace recordings by employees were unlawful. One policy prohibited workers from making video or audio recordings of meetings without approval of management or the consent of all parties to the conversation. The stated purpose of the policy was “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust.”
The second policy prohibited workers from recording conversations without management approval. Its stated purpose was “to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.” The Board majority found that the policies interfered with employees’ Section 7 rights. The Board held that the policies would reasonably be interpreted by employees to restrict protected activities such as “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forms in employment-related actions.” Many states, including Florida, have enacted laws prohibiting audio recordings without the consent of the other party to the conversation. Thus, employers are cautioned to have any policies like those invalidated in the Whole Foods decision reviewed by counsel, to ensure compliance with the NLRB and applicable state law.
I.Union Dues Checkoff
A panel of the Board found that an employer’s obligation to withhold union dues under a checkoff provision continues after expiration of a collective bargaining agreement, unless there is an express provision that checkoff ends upon contract expiration. Otherwise, the checkoff provision continues as part of the post-contract status quo. If the contract does not specifically provide that dues checkoff will end upon contract expiration, an employer can lawfully stop checkoff only if an employee revokes the dues authorization, or if there are no wages to which checkoff can apply. Employers may want to consider negotiating for a checkoff termination clause to include in its next contract. Expressly and clearly addressing whether a provision or practice continues or is stopped at expiration of the contract may help an employer avoid uncertainty and