News & Updates

Non-Union Employers Must Beware the NLRB April 8, 2015

For close to 75 years, non-union employers have had little reason to fear, let alone think about, the National Labor Relations Board, except until a union initiated an attempt to organize its employees. However, as evidenced by the March 18, 2015 Report of the General Counsel Concerning Employer Rules, any non-union employer that continues to ignore developments at the NLRB does so at its peril.

NLRB General Counsel Richard F. Griffin, Jr. has made it clear that the Board is on a mission to extend the application of Section 7 of the National Labor Relations Act to employee handbooks, policies, guidelines, and work rules at non-union employers. The March 18, 2015 report sets forth terms of a settlement that the NLRB negotiated with a large employer that has multiple locations across several states, which resulted in the employer amending several provisions of its handbook.

Employers must review their own employee handbooks, policies, guidelines, and work rules in light of the General Counsel’s Report Concerning Employer Rules. The NLRB has focused on employer rules dealing with:

  • Confidentiality
  • Conduct toward supervisors and the employers
  • Conduct toward fellow employees
  • Interactions with third parties
  • Use of company logos, copyrights, andtrademarks
  • Restrictions on photography and recording
  • Restricting employees from leaving work
  • Conflict of interest rules

The NLRB is evaluating provisions in employer handbooks, policies, guidelines, and work rules that were issued for legitimate business reasons and were not intended to prohibit or restrain conduct protected by Section 7. It will find the rule unlawful if: (1) employees would reasonably construe the rule’s language to prohibit Section 7 activity; (2) the rule was promulgated in response to union or other Section 7 activity; or (3) the rule was actually applied to restrict the exercise of Section 7 rights. While this standard has been in place for over 10 years, this Obama-appointed NLRB and General Counsel have a more expansive view of whether employees may construe a Rule to inhibit or chill employees in the exercise of their Section 7 rights.

Under its application of this old standard, it is likely that the NLRB will find one or more provisions of an employer’s work rules to violate the Act. The reach of this NLRB activism becomes clear after reviewing examples of the work rule language that the NLRB has found to be unlawful:

WORK RULES FOUND TO VIOLATE EMPLOYEE NLRA §7 RIGHTS

SUBJECT

LANGUAGE

CONFIDENTIALITY

Do not discuss “customer or employee information” outside of work, including “phone numbers and addresses.”

You must not disclose proprietary or confidential information about the Employer, or other associates (if the proprietary or confidential information relating to the Employer’s associates was obtained in violation of law or lawful Company policy).

Never publish or disclose the Employer’s or another’s confidential or proprietary information. Never publish or report on conversations that are meant to be private or internal to the Employer.

CONDUCT TOWARD THE EMPLOYER AND/OR SUPERVISORS

Be respectful to the Company, other employees, customers, partners, and competitors.

Do not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.

Be respectful of others and the Company.

No defamatory, libelous, slanderous, or discriminatory comments about the Company, its customers and/or competitors, its employees, or management.

PUBLIC CRITICISM OF EMPLOYER

Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.

It is important that employees practice caution and discretion when posting content on social media that could affect the Employer’s business operation or reputation.

Do not make statements that damage the Company or the Company’s reputation or that disrupt or damage the Company’s business relationships.

Never engage in behavior that would undermine the reputation of the Employer, your peers,   or yourself.

CONDUCT TOWARD FELLOW EMPLOYEES

Don’t pick fights online.

Do not make insulting, embarrassing, hurtful, or abusive comments about other Company employees online, and avoid the use of offensive, derogatory, or prejudicial comments.

Show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.

Do not send unwanted, offensive, or inappropriate e-mails.

Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail ... .

THIRD-PARTY COMMUNICATIONS

Associates are not authorized to answer questions from the news media … . When approached for information, you should refer the person to the Employer’s Media Relations Department.

All inquiries from the media must be referred to the Director of Operations in the corporate office, no exceptions.

If you are contacted by any government agency you should contact the Law Department immediately for assistance.

COMPANY LOGOS, COPYRIGHTS, AND TRADEMARKS

Do not use any Company logos, trademarks, graphics, or advertising materials in social media.

Do not use other people’s property, such as trademarks, without permission in social media.

Use of the Employer’s name, address, or other information in your personal profile is banned … . In addition, it is prohibited to use the Employer’s logos, trademarks, or any other copyrighted material.

Company logos and trademarks may not be used without written consent ... .

RESTRICTIONS ON PHOTOGRAPHY AND RECORDING

Taking unauthorized pictures or video on Company property is prohibited.

No employee shall use any recording device including, but not limited to, audio, video, or digital for the purpose of recording any Employer employee or Employer operation … .

A total ban on use or possession of personal electronic equipment on Employer property.

A prohibition on personal computers or data storage devices on Employer property.

Prohibition from wearing cell phones, making personal calls, or viewing or sending texts while on duty.

RESTRICTIONS ON LEAVING WORK

Failure to report to your scheduled shift for more than three consecutive days without prior authorization or “walking off the job” during a scheduled shift is prohibited.

Walking off the job … is prohibited.

CONFLICT OF INTEREST

Employees may not engage in any action that is not in the best interest of the Employer.

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3).

While Section 7 does apply to virtually all non-agricultural employees engaged in interstate commerce, in practice, the only time that it has been applied to non-union employers is when a union is engaged in an organizing effort at that employer. The fact that a law protecting virtually all non-agricultural employees engaged in interstate commerce has, in practice, only been protecting approximately 12 percent of employees, has clearly offended the Obama NLRB as well as his NLRB General Counsel. As a result, the NLRB has been: (1) aggressive in prosecuting Section 7 cases against non-union employers; and (2) outgoing in reporting and promoting successful outcomes that it has achieved against non-union employers, in the obvious hope that this will increase the likelihood that employees at other non-union employers will seek the protections of the NLRB of their own Section 7 rights.

The informal, bilateral settlement agreement that the NLRB entered into with the aforementioned employer required this non-union employer to replace the work rules that the NLRB considered to be “unlawfully overbroad” with replacement language that the NLRB’s Office of the General Counsel considers to be lawful. If an employer is unlucky enough to have its work rules targeted by the NLRB, it may be also be forced to include legal exclusions such as the following in its new, NLRB-sanctioned employee handbook:

An exception to the rule concerning pictures and recordings of work areas would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures of health, safety, and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.

In light of the sample language that the NLRB included in this General Counsel memorandum, it would be wise for employers to have their work rules reviewed by counsel to avoid such an undesired intrusion into its managerial rights. Now that the NLRB has the ambition to broaden its regulatory impact, this caution applies equally to both unionized and non-unionized employers. 

If you have any questions about how this report from the NLRB could impact your business, please contact:

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