Chances are better than nine in ten that the workplace you are reading this from is non-union. Those odds, as we all know, are part of the story of the declining presence of private sector labor unions in the American workplace. It’s a story as old as the summer day is long. So given the declining relevance of labor unions, why should you be concerned about the activities of the National Labor Relations Board (the NLRB), the federal agency charged with overseeing the relationship between unions and management?
Indeed, in telling and retelling the same story of declining union membership, certain assumptions glom onto our imaginations like barnacles to the hull of a traversing ocean liner. One salient barnacle stuck to the story of declining union relevance is the notion that as go the unions, so too goes the law that governs them. It’s a natural assumption: if private sector unions are less relevant to the workplace, so the thinking goes, it follows then that the regulatory apparatus charged with overseeing unions’ relationships with management, the NLRB, would also be less relevant. Such an assumption is misplaced. After all, as Isaac Newton pointed out, a regulatory body once put in motion, tends to stay in motion.
Simply put: the NLRB endures. Employers who fail to take notice of the Board’s expansive reading of employee rights court costly litigation before the Board, the unwinding of employee discipline and the invalidation of seemingly neutral policies that the company has announced.
So how does this play out in practice?
Under federal labor laws, just about all private sector employees have the right “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” That right exists irrespective of whether or not the employee works in a unionized workplace. An employer who “interferes” with those rights commits an unfair labor practice, subject to investigation and prosecution by the Board. And sure enough, even in non-union settings, employers are commonly found to have interfered with those rights, through the promulgation of rules that employees could construe as chilling their exercise of those rights.
Where this occurs most frequently is in the context of employee handbooks. Employers announce facially neutral rules that to most of the world seem reasonably targeted at preserving an employer’s good name and proprietary business interests, only to have the Board interpret those policies to have a potential chilling effect on the employee right to engage in concerned activities for mutual aid and protection. Here are some examples.
Confidentiality Clauses: Flex Frac, a non-union trucking company, required its employees to adhere to a confidentiality clause which prohibited employees from sharing certain information. Among the information deemed confidential were “management and marketing processes, plans and ideas, processes and plans, our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and artwork.” The NLRB reviewed and invalidated that policy. Because “personnel information” was included among the list of confidential subjects, the Board held and the Fifth Circuit Court of Appeals affirmed, that the confidentiality clause could lead employees to conclude that they were prohibited from discussing confidential wage information among themselves. That the rule did not expressly prohibit discussion of wages, and that employees did not in fact interpret the policy to restrict their rights to discuss wages among themselves, was of no import. Instead Flex Frac’s policy was simply void. Flex Frac Logistics, LLC v. NLRB, 746 F3d 205 (5th Cir 2014).
Social Media Policies. In the case of Dish Network Corporation, 16-CA-062433, 16-CA-066142 (Apr. 30, 2013), the Board adopted a finding that Dish Network illegally infringed on employees’ rights to engage in concerted activities when it prohibited employees from “making disparaging or defamatory comments” about the company, its employees or management on social media sites. Similarly in Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012), the NLRB required an employer to reinstate five employees whom it terminated for engaging in a heated dialogue via Facebook on co-worker performance.
Positive Attitudes. In the recent decision of Hills and Dales General Hospital, 360 NLRB No. 70 (Apr. 1, 2014), the NLRB held that an employer cannot prohibit employees’ expression of a negative attitude. Specifically, the Board required the hospital to cease and desist from “[m]aintaining a work rule that prohibits employees from engaging in or listening to negativity” and from “requiring that employees represent the employer in the community in a positive and professional manner in every opportunity.”
Employee Honesty. Even policies that have prohibited employees from “bearing false witness” against the employer have been held to impermissibly infringe on employees’ right to engage in concerted activities. In TT&W Farm Products, Inc. d/b/a Heatland Catshish Co. Inc., 358 NLRB No. 125 (Sept, 11, 2012), the NLRB concluded that a prohibition on “bearing false witness” illegally “chills protected activity because employees have the right … to criticize their employer when complaining about their terms and conditions of employment and … such criticism may include the occasional falsehood or hyperbolic comment.”
In light of the above examples, employers are well served to take heed of the continuing relevance of the NLRB and ensure that existing policies cannot be read to curtail or infringe upon employees’ rights to say just about anything about the terms and conditions of their work. Otherwise employers may find themselves stranded on the NLRB’s shores.
José Klein is an attorney with Barran Liebman LLP, where he advises and represents management in employment and labor law matters.
Contact him at 503-276-2199 or jklein@barran.com.
