NLRB Increases Pressure On Non-Union Employers, by David A. McClurg

Posted by Attorney Roger L. Pettit in Labor Relations / Comments

Obama appointees on the National Labor Relations Board (“NLRB”) continue to support a pro-employee agenda designed to encourage action by non-union employees. The Board recently launched a website specifically designed to “educate” employees about their right to engage in “protected concerted activities” under Section 8(a)(1) of the National Labor Relations Act (the "Act"), including the right to “form, join or assist labor organizations, bargain collectively through representatives of their own choosing, and to engage in other concerted protected activities for the purpose of collective bargaining or other mutual aid or protection.”

This website, and the additional actions outlined below, are examples of Board efforts that motivated the unions to mobilize their members and resources to re-elect President Obama. As a result of President Obama’s re-election, the NLRB is expected to increase its efforts to encourage unionization.

At-Will Employment Acknowledgement

The NLRB’s Phoenix office issued a complaint against Hyatt Corporation earlier this year alleging that the hotel chain violated the Act by requiring its employees to sign an acknowledgement that their status as at-will employees could only be changed by a written document signed by a Hyatt executive. Many employers use similar provisions to avoid arguments that statements by HR personnel or lower level supervisors effectively created an employment “contract” under which the employee can only be terminated for “just cause.”

In a startling departure from prior Board acquiescence to the wide spread use of at-will acknowledgements in employee handbooks, the Board took the position that the at-will provisions in the Hyatt handbook violated the Act because they “could be construed as prohibiting employees from joining together to seek a negotiated change in their at-will status.”

Arbitration Agreements

The Board decided earlier this year that an employer interfered with its employees’ rights to engage in “protected concerted activity” by requiring its employees to execute arbitration agreements providing that the arbitrator could hear only individual claims, and could not award relief to a group or class of employees. Although the case is now on appeal, administrative law judges have expanded on this ruling in two more recent cases.

These decisions fly in the face of several recent Supreme Court decisions upholding limitations on class action claims in arbitration provisions in consumer contracts, as well as lower court decisions upholding class action waivers in employment related arbitration agreements. Several federal district courts have already declined to follow this Board ruling.

Off-Duty Workplace Access

In an apparent effort to facilitate union organizing efforts, the Board recently held that a rule prohibiting access to an employer’s facility by off-duty employees, except those conducting “employment related activities,” violated the employees’ right to engage in concerted protected activity because the rule could be used to suppress unionization activities. The Board held that such rules are permitted only if they limit access solely to the interior of the facility, and apply and are clearly disseminated to all employees.

Confidentiality During Internal Investigations

The Board has also found that a policy of instructing employees not discuss matters under investigation violates the Act by coercing employees in the exercise of their rights to organize, participate in concerted activities and collectively bargain - even if the instruction is not tied to a threat of discipline. Although an employer's "generalized concern with protecting the integrity of the investigation" was held insufficient to justify a confidentiality instruction, an employer may lawfully require confidentiality if it can “demonstrate” that the request is based upon:

1. the need to protect witnesses;
2. a likelihood that evidence may otherwise be destroyed;
3. the threat that subsequent testimony would be fabricated; or
4. the need to prevent a cover-up.

This decision creates compliance problems relating to safety, privacy, and discrimination laws requiring investigation of sensitive allegations/issues. The inability to ensure confidentiality may dissuade workers from voicing complaints and participating in investigations, making it more difficult for employers to recognize and remedy improper or unlawful actions. It will also impair an employer’s ability to make reliable credibility determinations when comparing the versions of events provided by those involved in the incident(s) under investigation. Fortunately the decision does not extend to supervisory personnel.

Social Media and Non-Disparagement Policies

In a rapidly expanding set of decisions and guidance memoranda the Board has determined that policies prohibiting employee disparagement of the employer, posting of photos of the workplace, discussion of employment related issues or confidential business information, including salaries, and use of social media on “Company time” all violate the Act.

“Quickie Election” and “Micro Unit” Rules to Ease Unionization Efforts

Post-election, the Board will likely resurrect rules dramatically shortening the time period between petitions requesting a union representation election and the election itself, and may even attempt to impose a “card check” system that would require an employer to recognize a union if over 50% of the members of a bargaining unit sign cards indicating that they want the union to be their bargaining representative. It is likely that the Board will also implement rules to allow smaller groups of employees sharing a community of interests to unionize.