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Changes Pushed by NLRB: Employers Beware and Be Aware

A Workplace Law Client Alert

By: Bodman's Workplace Law Practice Group

11/13/12

 

With private sector union membership rates hitting all-time lows, the Employee Free Choice Act buried, and union organizing activity waning, the National Labor Relations Board (“NLRB”) has offered assistance pursuing zealous theories expanding the boundaries of federal labor law. Consider the more noteworthy NLRB action impacting union and non-union workplaces in the just completed fiscal year ending September 30, 2012.

Investigation of Workplace Misconduct - Employer instruction to employees not to discuss an on-going workplace investigation is unlawful unless the employer proves "a legitimate business reason" which outweighs the right of employees to discuss the investigation among themselves. Banner Health System, 358 NLRB No. 93 (2012). The employer has the burden to demonstrate employees were directed not to discuss the on-going investigation because witnesses and evidence needed protection from outside influence, such as fabrication of testimony or preventing a cover up. Just stating that the employer is seeking to protect the integrity of the investigation is not sufficient to avoid a NLRB violation.

Limiting Off-Duty Access To Company Premises - Rules prohibiting off-duty employee access to interior areas of the employer facility are unlawful where access is allowed with managerial approval. Marriott International Inc., 359 NLRB No. 8 (2012). In an earlier decision, the Board struck down an off-duty access rule allowing employees access for employer sponsored events, interpreted by the NLRB to mean, “you may not enter the premises after your shift except when we say you can.” Saint John’s Health Center, 357 NLRB No. 170 *5 (2011). Prohibiting off-duty access is valid only if it: (1) limits access solely to the interior of the facility and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity. Unless justified by business reasons, denying off-duty employees entry to parking lots, gates, and other outside nonworking areas will be invalid.

Work Rules Regulating Communication - If the NLRB has its say, civility or “courtesy” at work may be a relic of the past. The NLRB invalidated a “courtesy” work rule prohibiting “‘disrespectful” conduct and language “which injures the image or reputation of the [employer].’” Karl Knauz Motors, Inc. 358 NLRB No. 164 (2012) “Disrespectful” was deemed ambiguous, leaving employees with the reasonable impression that any statements of protest or criticism, otherwise protected by law, would be considered disrespectful and a violation of the rule.

Social Media - Social media is now the new "water cooler" spot. Communications between employees, even if on Facebook, Twitter, or a similar site, about working conditions, job performance, wages, benefits, and supervisors are, according to the NLRB, protected activities. The NLRB is vigilantly policing employers who discipline employees for their social media content. Employers are surprised to find many employee comments in social media are protected. Because of the huge controversy surrounding social media, the NLRB’s General Counsel has issued a sanitized acceptable version of a social media policy.

At-Will Employment Status - In a highly publicized and criticized case, an NLRB administrative law judge (ALJ) ruled that an unchangeable at-will disclaimer violated the NLRA. The rationale is that employees were forced by the disclaimer to give up any right to organize a union and change the at-will status in the future. American Red Cross Arizona, Div. of ALJ (2/1/12) According to the ALJ, employees could reasonably construe the no amendment language to prohibit concerted activity seeking to change or eliminate the at-will disclaimer. This is a bizarre rationale because federal labor law would require that the employer bargain over the at will status with any future union.

American Red Cross was ultimately settled. The NLRB’s Office of Advice recently issued two memoranda attempting to quiet the uproar caused by that decision. Employers are allowed to use at an at-will disclaimer that does not preclude modification. The Bodman at will disclaimer, in our form employment application, provides for limited written modification by the president of the employer and is valid under the Office of Advice memoranda. Employers who do not use Bodman’s form employment application may obtain one from an attorney in the Workplace Law Group.

Notice Posting - The NLRB issued regulations requiring employee rights posters in all but the smallest private sector workplaces, with automatic penalties on employers who fail to post the notices. This notice posting regulation was a way to help unions after attempts to enact card check laws were defeated. Notice posting has been suspended. Court challenges to the NLRB regulations pushed the original posting date to April 30 to allow the federal court time to consider the challenge. The notice posting issue has not yet been resolved and the injunction against the NLRB's notice posting requirement is continuing.

With the NLRB pushing change that will impact almost every workplace, employers must remain vigilant. Conduct allowed in the past, may not be allowed in the future. Action which is logical may still be unlawful. It is a wise practice to consult with a Workplace Law attorney before making a workplace decision. For questions, feel free to contact a member of Bodman's Workplace Law Group listed below.

Workplace Law Group