Employers Beware: The nlrb Is Targeting Nonunion Employers (6/11)

Over the last few months, federal agencies including the EEOC and the DOL have been putting pressure on employers.  Now the NLRB appears to be taking aim at four policies most employers have.  Find out the six steps you can take to protect your organization.

Most nonunion employers do not spend a lot of time worrying about the National Labor Relations Act (NLRA), the federal law that allows employees to join unions.  But, recent events show that you should.  The NLRA protects much more than just traditional union organizing.  Any time your employees participate in “concerted activity,” such as discussing their pay or complaining about their working conditions with other employees, they are protected.  In the last several months, the National Labor Relations Board (NLRB) has been targeting employer policies that seem to have nothing to do with unions and union organizing, including social media and behavior policies.  Below, we discuss the four policies that can get your organization in trouble and six steps you can take to protect against NLRB investigations. Broad Definition of “Concerted Activity”  The NLRA gives nonsupervisory employees the right to self-organize; to form, join, or assist labor organizations; to bargain collectively through their own representatives; and to engage in a “concerted activity” for collective bargaining or other mutual aid or protection.  (The NLRA’s definition of who is an employee protected by the Act does not include supervisors.  A supervisor is defined as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action.”)       It is the is the broad interpretation of what employee actions are considered “concerted activities” that gives nonunion employers the most trouble with NLRA claims.  For a concerted activity to be protected, it generally must center on a controversy involving the terms and conditions of employment.  So, if employees take action as a group to complain about your policies, their actions may be protected.         For example, in Trompler, Inc. v. NLRB, 338 F.3d 747 (7th Cir. 2003), the court upheld an NLRB decision that the employer violated the NLRA when it terminated six nonunion workers who walked off the job to protest their supervisor’s behavior.  The court acknowledged that the choice of supervisor is a management prerogative but also said that a supervisor’s conduct that impairs the terms or conditions of employment for the workers he supervises is a legitimate subject for concerted activity.             In addition, even if an employee acts alone, his conduct may be considered concerted activity protected by the NLRA if he is acting on behalf of other employees.  In NLRB v. Caval Tool Decision, 262 F.3d 184 (2d Cir. 2001), the court determined that the company violated the NLRA when it suspended and put on probation an employee who criticized a new break policy during a company meeting. The court found that the employee’s comments were protected since they were directly aimed at a change in the terms and conditions of employment.  Similarly, in Phillips Petroleum Co., 339 N.L.R.B. 916 (2003), the NLRB found that a company violated the NLRA when it fired an employee who tried to convince it to modify its sick leave policies.  The worker’s efforts were protected since they were motivated not only by his own need for leave to care for his wife and children but by a desire to obtain this benefit for his fellow employees.      Over the last few years, the NLRB has applied this broad definition of “concerted activity” to protect employees terminated or disciplined for seemingly routine violations of employee handbook policies.  In particular, the following four policies have been targeted by the NLRB as potential problem areas for nonunion employers: 1.     Social Media Policies. Overbroad social media policies can result in a NLRA claim, and the NLRB appears to be actively pursuing these cases, particularly in just the past few months.  The NLRB made the national news late last year when it brought a claim against an ambulance service, American Medical Response, after the company fired an employee for violating its social media policy because she posted negative comments about her manager on Facebook.  The NLRB alleged that the employer’s social media policy was overly broad and interfered with the employee’s NLRA rights to engage in concerted activity.  According to the NLRB complaint, the employer’s policy stated, among other things, “employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”  Further, the complaint indicated that earlier in the day, the employee had requested union representation during an investigatory interview regarding past poor performance, and her supervisor denied her representation and threatened her with discipline for her request.  She apparently was commenting on these issues and criticizing her supervisor on Facebook, and other employees also commented on the employee’s posts.        The employer settled the case with the NLRB and agreed to revise its policy.  Since the employee was discussing work-related conditions with other employees, (and particularly potential violations of her union rights) on her Facebook page, it is unclear what the outcome would have been if the employee had only made negative comments about her supervisor, without any reference to the earlier union representation request.  However, what is clear from this case is that employees have another legal avenue to pursue if they are terminated for Facebook or other social media postings that discuss working conditions.        The agency also reported a settlement in April 2011 with a California company that had terminated an employee for posting comments on her Facebook page about her employer and potential state labor code violations.  Several of her coworkers who were her “Facebook friends” also commented on her postings.  The employees at the company are not represented by a union, and no union representation issue was involved.  The company, Build.com, agreed to settle the complaint by posting a notice for sixty days that employees have the right to post comments about the terms and conditions of their employment on social media pages and will not be terminated or disciplined for their comments.      On a positive note for employers, if the social media postings are not related to the employee’s working conditions, then the employer likely can take action against the employee.  The NLRB Office of General Counsel issued an Advice Memorandum to a newspaper in Arizona in April 2011 indicating that the employer did not unlawfully terminate an employee for comments on his Twitter account.  The employer fired the employee after he continually “tweeted” postings the employer considered offensive and inappropriate.  The NLRB General Counsel determined that the postings were not protected because they did not address “concerted activity” protected by the NLRA.  The postings included critiques by the employee about the newspaper’s sports department headlines, negative comments about the city’s homicide rates, and a comment referring to “stupid TV people” in response to a local TV station’s Twitter comment.  Note, too, that the employer did not have a social media policy in place.       Although neither the NLRB nor the courts have addressed negative employee social media comments in a published opinion, these actions by the NLRB indicate that employers that terminate or take disciplinary action for negative employee social media comments should be prepared to defend against NLRA claims. Although neither the NLRB nor the courts have addressed negative employee social media comment in a published opinion, there could be one coming soon. FoxNews online recently reported that the NLRB has opened more than 24 Facebook-related investigations in the last year. So you need to be prepared to defend against NLRA claims if you take disciplinary action for negative social media comments by your employees.  2.     Pay Policies Addressing Wage Discussions Pay policies also can be the basis for NLRA claims.  Since wage issues are a frequent objective of employee organizing, rules prohibiting wage discussions have been interpreted to be unlawful interference with the right of employees to engage in organizational and concerted activity.   Thus, in Northeastern Land Servs. v. NLRB, 560 F.3d 36 (1st Cir. 2009), the court determined it was unlawful to fire an employee who violated a confidentiality agreement which prohibited the employee from discussing his compensation because such a prohibition violated the NLRA.  Similarly, in Cintas Corp. v. NLRB, 482 F.3d 463 (D.C. Cir. 2007), the court upheld the NLRB’s decision ordering an employer to rescind its policy prohibiting disclosure of “any information concerning the company, its business plans, its partners, new business efforts, customers, accounting and financial matters” because employees could reasonably construe the rule’s unqualified prohibition of the release of “any information” regarding “its partners” to unlawfully restrict their discussion of wages and other terms and conditions of employment with fellow employees.            Further, a policy does not even have to be in writing to violate the NLRA; it only has to be verbally communicated to employees.  So, for example, in NLRB v. Main Street Terrace Care Center, 218 F.3d 531 (6th Cir. 2000), the Sixth Circuit upheld the NLRB’s ruling that the employer violated the NLRA because its managers orally instructed employees not to discuss their wages. 3.     Inconsistent Email Policies Another area that can be challenging for nonunion employers is email use.  Many employers allow employees to use email to disseminate and exchange a wide variety of information, including personal materials.  Some, however, try to prevent employee use of email to discuss union and other nonbusiness activities and so restrict their email and other communication systems to business use only.  The NLRB generally upholds such policies limiting the use of communication equipment and systems as long as the rules do not discriminate against unions while allowing other employee personal activities.      So, for example, in Guard Publishing Co., 351 N.L.R.B. No. 70 (2007), affirmed in relevant part by Guard Publishing Co. v. NLRB, 571 F.3d 53 (D.C. Cir. 2009), the NLRB found that an employer’s email policy prohibiting employees from using its email system to send nonjob-related solicitations was valid.  It ruled that the policy was consistently applied and could be enforced against an employee who emailed coworkers asking them to wear green in support of the union and to attend a parade to support the union.  However, the NLRB also determined that the employer violated the NLRA when it disciplined the same employee for sending email to coworkers that reported on what had happened at a union rally.  The second email did not solicit employees to take action but the employer attempted to suppress it while routinely allowing other employees to use the email system to send personal emails such as jokes, baby announcements, and invitations.        The bottom line, therefore, is that if you allow employees to send and receive nonwork-related email, you may not at the same time restrict email discussion of union issues. 4.     Conduct Rules Can Be Challenged Employer conduct rules also have been the target of unfair labor charges asserting that they have a chilling effect on employee rights to engage in protected activities under the NLRA.  For example, in Lafayette Park Hotel, 326 N.L.R.B. No. 69 (1998), the union challenged a rule prohibiting employees from making false, vicious, profane or malicious statements toward or concerning their employer’s business or its employees.  In deciding that the mere maintenance of the rule violated the Act, the NLRB said that if the rule was likely to interfere with, restrain, and coerce employees in the exercise of guaranteed rights under the NLRA, it was unlawful, even though it was not adopted to address, or enforced against, union activity.  The NLRB determined that the rule was overbroad because it did not clearly define permissible conduct and thus, an employee could reasonably interpret it as prohibiting legally protected activities.  Similarly, in Int’l Union, UAW v. NLRB, 520 F.3d 192 (2d Cir. 2008), the court determined that when a CEO instituted a rule against harassing fellow employees that did not define harassment during a union organizing campaign, the company violated the NLRA.  The court found that the rule was overly vague and intended to discourage union activity.      The NLRB and courts have allowed employers greater flexibility as long as the conduct rules do not explicitly restrict protected activity or are not implemented in response to a union campaign.  In Martin Luther Mem’l Home, Inc., 343 N.L.R.B. No. 75 (2004), the NLRB determined that a workplace rule against “verbal abuse,” “abusive or profane language,” or “harassment,” that did not explicitly restrict NLRA protected activities would not violate the Act.  However, such a rule must not be able to be interpreted by a reasonable employee to prohibit protected conduct, must not be adopted in response to union activity, and must not be enforced to restrict the exercise of NLRA rights.  In contrast, the NLRB found unlawful, in KSL Claremont Resort, Inc., 344 N.L.R.B. No. 105 (2005), a rule prohibiting employees from having negative conversations about their associates or managers.  It determined the rule could reasonably be interpreted to bar coworker discussions of complaints about their managers affecting working conditions, thereby causing employees to refrain from engaging in protected activities.      These cases illustrate that you must balance your need to ensure a civil and orderly workplace against employee legal rights to communicate freely about the terms and conditions of their employment.  Nevertheless, you should not shy away from adopting and maintaining clear policies against workplace harassment since you must prevent offensive behavior and protect your organization from harassment liability.  The cost of harassment and related employment tort lawsuits often far exceeds the cost of remedial measures imposed as the result of an adverse decision in an NLRB unfair labor charge triggered by work conduct rules.  However, you should be careful to enforce these types of rules consistently and not use them as a tool to curtail protected activity. Protect Against NLRA Claims Board members to the NLRB are appointed by the President for five-year terms and approved by the Senate, generally ensuring that the political party in charge will enjoy a majority.  Currently, the NLRB has only four members (three members are enough to provide a quorum for decisions), with three Democrats and one Republican sitting on the board.  Most HR and legal analysts expect the NLRB to favor union positions and expand nonunion employee rights.  Because the NLRA can impact you in so many different ways, and because the NLRB may take a broad view of what employer actions are “concerted activity,” you should have a plan to comply with the law and to recognize potential problem areas. You can help prevent NLRA claims by taking the following six steps: 1.     Review your policies and procedures to ensure compliance with the NLRA.  Pay special attention to social media, pay, email, behavior, conflicts of interest, and disciplinary policies and look for language that could discourage employees from exercising their NLRA rights.  In addition, you should stay current on new NLRB decisions, particularly those involving social media. 2.     Consider putting a general NLRA disclaimer in your handbook.  Many HR and legal experts now suggest that employers add language to their handbooks and policies and procedure manuals indicting that their policies will not be enforced in such a manner to interfere with employees’ rights to engage in concerted activity under the NLRA.  This statement may not entirely prevent NLRA claims, but at least it would show your recognition of employees’ NLRA rights and your attempt to comply with the NLRA.   3.     Do not prohibit wage discussions in your pay policy.  This area is clearly settled by the NLRB, yet many employers still want to ban pay discussions in spite of the NLRB’s position.  In addition, state laws may prohibit these policies, such as in California and Michigan.  Instead, you should encourage employees to direct questions or concerns about compensation to the human resources department or appropriate department head. 4.     Evaluate work rule violations and disciplinary actions carefully when an employee expresses disapproval with management policies and procedures. You should be cautious before disciplining any employee for making remarks, whether in your office or on social media, that involve NLRA-protected terms and conditions of employment, such as pay, work rules, and discipline.  However, employees who complain about their own personal employment problems (as opposed to voicing concerns about how policies affect the workforce) generally are not covered under the NLRA’s protections.   5.     Draft email policies carefully if you want to limit nonbusiness use and implement them consistently to prevent NLRA claims. Most employers find it impractical to ban all personal email use, so be prepared to allow some discussions of union activity.  If you do ban all nonbusiness use of your organization’s email, you must enforce it consistently and cannot just target union activity for discipline. 6.     Have your attorney check your policies and procedures specifically for NLRA compliance. Regular legal reviews, particularly when you make policy changes, are a good form of compliance insurance and risk control.