During our Masters Series presentation in April, we addressed the National Labor Relations Board’s (NLRB) General Counsel’s memorandum relating to conduct policies. In the memorandum, the General Counsel contended that certain policies, including what appeared to be standard handbook provisions, violate employees’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Concerted activity generally is two or more employees discussing or taking action with regard to terms and conditions of work or even one employee taking action on a matter involving terms or conditions of employment.
A number of the policies contained in the memorandum and addressed in our presentation likely left several employers scratching their heads. As an example, according to the General Counsel, the following prohibition violates the NLRA:
- Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.
In contrast, according to the General Counsel, this prohibition is lawful:
- Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/supervisor, coworker, customer, or vendor will result in discipline.
The difference, according to the General Counsel, is that “[a]lthough a ban on being ‘disrespectful’ to management, by itself, would ordinarily be found to chill Section 7 criticism of the employer, the term [in the second, lawful policy] is contained in a larger provision that is clearly focused on serious misconduct, like insubordination, threats and assault.” The General Counsel came to this conclusion despite the obvious similarities of these rules, including the inclusion of “insubordination,” which employers are undoubtedly allowed to prohibit.
In light of this recent “guidance” from the NLRB, employers should keep the following in mind:
- The lawfulness of the policies in the guidance is the opinion of the General Counsel and has not been tested in the Courts or decided directly by the National Labor Relations Board. Given proper legal analysis, many of the General Counsel’s opinions could and should be rejected.
- Context and placement of policies in the handbook matter. The General Counsel repeatedly indicated in the memorandum that the lawfulness of the examined policies would be decided in context with the material around it. While the wording of a policy may be unlawful standing alone, it could be lawful given the context and surrounding material. For example, a policy prohibiting harassing or disparaging comments may be lawful if it was contained within the handbook’s discrimination and harassment policy.
- If no employee is terminated, the penalty is low for maintaining an unlawful policy. Absent an employee termination as a result of an unlawful rule, if an employer is found to have an unlawful policy in its handbook, the employer will likely only be required to change or delete the policy and post a notice to employees informing them or their rights under the NLRB for 60 days. If an employee is terminated; however, the employer will likely be required to reinstate the employee with backpay.
- While it is remarkable that the General Counsel continues to strike down long-used policies designed to maintain workplace order by claiming that the employees would reasonably believe the policies infringe on their rights to unionize and engage in protected concerted activity, the memorandum is helpful in that it provides examples considered to be lawful by the General Counsel to use in handbooks. In light of the General counsel’s tirade against standard policies, it is important to work with knowledgeable counsel when auditing or creating policies and handbooks.
In recent years, the National Labor Relations Board (NLRB) has issued decisions that protect employees using Facebook and other social media to criticize their employers. Posting comments on Facebook and other social media may be a protected concerted activity under the National Labor Relations Act (NLRA). Evidently, the NLRB is now expanding its reach to cases where an employee simply clicks the “like” button under a Facebook post.
In the Triple Play Sports Bar case, a former employee posted on Facebook that she was upset with the sports bar because she had to pay more in income taxes than expected. She wrote on her Facebook page:
Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money… WTF!!!!!
Several employees of the sports bar commented on the post. One employee posted “I owe too. Such an a…hole.” Another employee did not comment but clicked the “like” button. When the owners of the sports bar found out about the Facebook post, they summoned the two employees into the office and confronted them about their comments. They were both fired. The employees filed charges with the NLRB alleging that they were engaged in a protected and concerted activity and the NLRB agreed.
According to the NLRB, the online discussion regarding tax liabilities was a protected concerted activity because it related to working conditions. The employee who had clicked the “like” button was merely expressing his support of others who were complaining about the employer’s handling of tax paperwork. Thus, the Company committed an unfair labor practice by discharging him from employment.
The NLRB also found that the employee who commented “I owe too” and “Such an a…hole,” had likewise engaged in a protected concerted activity. Triple Play argued that the comment was disloyal and should not be protected because the comment reflects a “sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” The NLRB disagreed with Triple Play noting that the comments were made pursuant to a labor dispute and were not directed to the general public.
Where are the takeaways from all this?
- Even without a labor union in the workplace, an employee can pursue an unfair labor practices charge under the NLRA if he or she engaged in a protected concerted activity and was subjected to adverse action.
- Postings and communications on social media which air grievances concerning wages and conditions of employment are generally protected. In the Triple Play Sports Bar case, the employees were complaining about income tax withholding and their outrage resulting from the employer’s accounting practices.
- Employees may be protected by simply clicking the “like” button and agreeing with comments that are critical with the way a company handles matters relating to wages or employment terms and conditions.
- Although the NLRB will balance an employee’s right to engage in concerned activities with an employer’s right to punish employees who are disloyal, it is clear that the NLRB is granting more leeway to employees who criticize their employers and even use profanity to communicate their complaints.
One of the most important elements when a union petitions for an election to represent certain employees is the size of the voting unit or voting group. Generally, the smaller the voting unit, the easier it is for a union to organize and win the election. A recent decision by the National Labor Relations Board (NLRB) illustrates the activist tendencies of the current version of the NLRB and its movement in a direction which will allow unions greater opportunities to organize and to win elections.
A Macy’s store in Massachusetts had approximately 150 total employees, 120 of whom were “selling” employees. Approximately 41 of those selling employees worked in cosmetics and fragrances. The union sought to represent only that small group. The employer took the position that the only appropriate unit would include all other employees of the store, or at least all of the selling employees. That position was consistent with bargaining units approved by previous versions of the NLRB. However, in this case, the NLRB found that the smaller voting group was appropriate.
In making its decision, the Board looked at its previous decision in Specialty Healthcare in which it held that where a particular unit of employees the union seeks to represent is “readily identifiable as a group” and has a “community of interest” the unit will be found to be appropriate unless the employer carries the heavy burden of demonstrating that the additional employees it wants to include (1) have such an “overwhelming” community of interest with the employees petitioned for that (2) there is simply no legitimate basis upon which to exclude them. A “community of interest” is simply a generalized statement referring to the fact that similar terms and conditions of employment apply to all members of a particular group.
The NLRB found that the employer did not carry its burden and approved an election in the smaller unit.
The takeaway from this decision is significant. Past versions of the NLRB had stated that they wanted to avoid the “fragmentation of bargaining.” In other words, they did not want to saddle an employer with five or ten different bargaining units with five or ten different unions and the resulting potential of five or ten different contracts. With private sector union membership hovering around seven percent, however, it is clear that this NLRB is trying to make it easier for unions to organize employees. Does this decision mean that a union could come into an office facility and seek to represent only employees in accounts receivable, but not accounts payable? Or, to return to the department store analogy, represent only those employees in the clothing department who sold undergarments but not other types of clothing? Neither of those examples are out of the question in light of this decision. What it means is that employers cannot afford to ignore any segment of their employees, their concerns and their complaints. Unions frequently organize small groups to get into a particular company, and it is important to make sure that toehold is not established.
For several years, the National Labor Relations Board has been attempting to issue a new rule which would drastically reduce the time an employer might have to participate in a union campaign and tell its side of the story to employees. Although elections presently are generally scheduled from five to seven weeks after the filing of the petition, under the new rule the process could be accelerated, perhaps to as short a period as ten days after the filing of the petition. No pre-election administrative hearing would be held to decide the eligibility of individual voters unless those voters exceed 20 percent of the people in the entire voting group. Employers would be required to submit lists of potential members of the voting group prior to the hearing and again almost immediately after the issuance of a direction of election or voluntary election agreement.
The proposed rulemaking, which discussed a number of comments that already had been presented to the NLRB when it last tried, in 2012, to pass a similar bill, runs approximately 180 pages in length. It will be open for comments for 60 days. Proposed Rule
The significance of this proposed rule cannot be overstated. A union which conducts a stealthy pre-petition campaign among workers may elude notice that there even is an election campaign by the employer. The employer then may be presented with a petition and face the prospect of a fast-track election, and, although it certainly has the right to free speech under the National Labor Relations Act, may have very little time to exercise that right.