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Labor: Avoid trouble with the NLRB

Review company policies and tread lightly around union organization attempts

Most employers are aware that the National Labor Relations Board (the NLRB) enforces the National Labor Relations Act (the NLRA). Most employers also correctly assume that they have to deal with the NLRA if and when their employees try to organize or join a union.

Too many employers, however, forget that the NLRA, and thus the enforcement powers of the NLRB, reach non-unionized employers too. If a non-unionized employer interferes with a non-supervisory employee’s right to engage in “protected concerted activity,” the employer risks an NLRB charge and investigation. Protected concerted activity involves employees acting with or on behalf of other employees for their “mutual aid and protection,” including bringing complaints to the attention of management or actions to improve terms and conditions of employment.

Employers—even if not unionized—therefore can run afoul of the NLRA by activities that would otherwise seem to be reasonable. For example, the following activities could be found to interfere with concerted activity:

  • Terminating or disciplining a non-supervisory employee for sending a company-wide email complaining about a change in company policy that affects a group of employees
  • Terminating or disciplining employees for saying disparaging things about a company’s treatment of its employees on a blog or Facebook page
  • Having a confidentiality policy that prohibits non-supervisory employees from disclosing their compensation to others
  • Allowing employees to solicit donations for charitable purposes on a company bulletin board, but prohibiting employees from posting information about a union on the bulletin board
  • Having social media policies that broadly prohibit employees from saying disparaging things about supervisors and managers

The last two bullet points merit further discussion. The key to a lawful solicitation/distribution policy is consistency. Many employers have policies restricting solicitation in working areas during working hours. However, if an employer allows solicitation or distribution—including through company email—for content such as personal charitable activities or sales/swaps, an employer may not prohibit solicitation or distribution regarding unions, meetings or literature.

Social media policies are another tricky area. The NLRB has increasingly taken the position that social media policies can be read to curtail employees’ rights to discuss the “terms and conditions of employment,” a right protected under the NLRA. Social media policies have been found to be unlawful if they broadly prohibit “disparaging” comments about the employer, supervisors, employees, terms and conditions of employment, or generically prohibit “unprofessional” communications, disclosure of “confidential, sensitive or nonpublic information,” or “disrespectful conduct.”

To avoid an issue with the NLRB, make sure the policy is sufficiently detailed to clearly articulate its goal and to identify the type of conduct that is prohibited. Don’t use terms like “defamatory,” “derogatory,” or “inappropriate” without providing specific examples of conduct clearly not protected by the NLRA, such as “vulgar, obscene, threatening, intimidating, [or] harassing” comments about the company, coworkers or supervisors, or comments that would violate the employer’s antidiscrimination or anti-harassment policies.

Prohibitions on disclosing “confidential information” should also list the types of information covered, without including information the NLRB believes employees have the right to share, such as customers’ personal health information and confidential information regarding the business such as launch and release dates or reorganizations.

In addition, add the following statement to the policy: “Nothing in this policy is intended or should be construed to infringe upon our employees’ Section 7 rights under the NLRA.”

The NLRB clearly wants your employees to know about their rights. Government contractors with contracts of $10,000 or more must post a notice informing employees of their rights under the NLRB. The NLRB extended this posting requirement to non-government contractors, but several courts have enjoined the requirement—for the time being—while litigation ensues over the requirement. Be aware that when the litigation ends, the courts may decide that non-unionized, non-governmental contractors will have to post the information as well.

If your employees do decide to attempt to form a union, there are a few basic dos and don’ts every employer should know. These basic points can be summarized by the acronym “TIPS”:

Threats: Avoid statements implying negative consequences for employees seeking to unionize, such as termination, pay cuts, plant closures or layoffs.

Interrogation: Do not question an employee regarding the employee’s or co-workers’ union activity in a way that would chill such activity.

Promises: Do not make statements implying positive consequences for employees opposing unionizing, such as pay raises or promotion.

Surveillance/Spying: Do not spy on employees exercising their NLRA rights, such as monitoring union meetings, identifying union supporters or planting anti-union employees to report back to supervisors.

Observing these TIPS can go a long way toward avoiding violations of the NLRA during a union election campaign.

Contributing Author

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Karin McGinnis

Karin McGinnis is a member in Moore & Van Allen’s Employment & Labor group. She concentrates her practice on employment law, handling a broad range of...

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Contributing Author

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Benjamin Fryer

Benjamin Fryer's practice focuses on general litigation and employment law. Mr. Fryer has experience in a broad range of employment and labor matters, including state...

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