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“Concerted Activity” Coverage
Pay Policies Cannot Prohibit Wage Discussions
Disciplinary Investigations May Require Representation
Employee Committees Limited to Information Gathering
Inconsistent E-Mail Policies
Six Steps to Protect Against NLRA Claims
Outdated Law Catches Many By Surprise
Think a union has to be present before you need to worry about NLRA
claims? Guess again. Any time your employees participate in
“concerted activity,” they are covered. Find out what claims can
arise and the six steps you should take to protect against
violations.
[Creating HR Policies or Employee Handbook?]
Have you ever considered implementing
a rule forbidding discussions about pay? If so, you may be about to
violate the National Labor Relations Act (NLRA). The Act gives all
employees, not just union employees, the right to engage in
“concerted activities for collective bargaining or other mutual aid
or protection.” This entitlement has been interpreted to protect
nonunion employees who question the terms and conditions of their
employment.
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As a result,
the National Labor Relations Board (NLRB) and the courts have
granted nonunion employees the right to discuss their pay, have
representation during investigatory interviews, and complain
individually about their working environment. Other decisions have
also limited employer participation groups and even e-mail
policies. Clearly, all employers, and not just union organizations,
should be concerned about the NLRA’s coverage. You need to know
where you are most vulnerable and understand how best to prevent
violations. Fortunately, you can limit your risks under the law
both by keeping an eye on NLRA decisions and by following the six
preventative steps outlined below.
The NLRA gives
employees the right to self-organize; to form, join, or assist labor
organizations; to bargain collectively through their own
representatives; and to engage in concerted activities for
collective bargaining or other mutual aid or protection. Nonunion
employers often face NLRA claims when they take adverse employment
action against employees involved in “concerted activity.” For a
concerted activity to be protected, it generally must center on a
controversy involving the terms and conditions of employment.
Thus, if
employees take action as a group to complain about your
organization’s policies, their actions may be protected. For
example, in Arrow Electric Company, Inc. v. NLRB, 155 F.3d 762 (6th
Cir. 1998), the Sixth Circuit found that the employer violated the
NLRA when it terminated four nonunion employees who walked off the
job to complain about their supervisor’s abusive behavior. In that
case, the employer could not enforce its policy against employees
improperly leaving a jobsite since the employees were acting as a
group to protest their terms and conditions of employment.
In addition,
even if an employee acts alone, his conduct may be considered
concerted activity protected by the NLRA if he is acting on behalf
of other employees. In NLRB v. Caval Tool Decision, 262 F.3d 184
(2d Cir. 2001), the Seventh Circuit determined that the company
violated the NLRA when it suspended and put on probation an employee
who criticized a new break policy during a company meeting. The
court found that the employee’s comments were protected since they
were directly aimed at a change in the terms and conditions of
employment. Similarly, in NLRB v. Main Street Terrace Care Center,
218 F.3d 531 (6th Cir. 2000), an employee was found to have engaged
in concerted activity when she talked to management about the
wage-related problems of other employees.
Pay policies also can be the basis for NLRA claims. Since wage
issues are a frequent objective of employee organizations, rules
prohibiting wage discussions have been interpreted to be unlawful
interference with the right of employees to engage in organizational
and concerted activity. In fact, a policy does not even have to be
in writing to violate the NLRA; it need only be orally communicated
to employees. Again, in NLRB v. Main Street Terrace Care Center,
218 F.3d 531 (6th Cir. 2000), the Sixth Circuit upheld the NLRB’s
ruling that the employer violated the NLRA because its managers
orally instructed employees not to discuss their wages.
Another potential area of concern is disciplinary investigations.
In the past, most employers have not allowed nonunion employees to
have a coworker representative with them during an investigatory
interview. But, in Epilepsy Fdtn. of N.E. Ohio v. NLRB, 268 F.3d
1095 (D.C. Cir. 2001), the D.C. Circuit Court of Appeals upheld the
NLRB’s decision that nonunion employees have the same right as union
employees to request, and have present, a coworker during an
investigatory interview that could lead to discipline. This
privilege exists as part of both union and nonunion employee rights
to engage in concerted activities under the NLRA.
Recent
decisions by the NLRB also call into question the legality of
employee participation committees if the groups involve employees in
the decisionmaking process. (Employee participation committees are
a popular way to bring together rank and file employees and members
of management to discuss issues affecting the workforce.) However,
these committees may be illegal if they can be considered
employer-assisted or -dominated labor organizations and they discuss
terms and conditions of employment.
The NLRB
evaluates the legality of employee committees using a two-part
analysis. First, it considers whether the committee constitutes a
“labor organization” under the NLRA. A committee is a labor
organization if its employee-members participate and “deal with” the
employer regarding issues such as wages, hours, or other terms and
conditions of employment. Next, it considers whether the employer
has dominated or interfered with the formation or administration of
the committee. This second point is satisfied if management created
the committee and determines the committee’s structure, function,
and continued existence.
For example,
in EFCO Corp., 327 NLRB No. 71 (1998), the NLRB found that the
employer violated the NLRA because it selected the members of
several committees, set the agenda (which included terms and
conditions of employment), and accepted or rejected the
recommendations made by the committees. Similarly, in Polaroid
Corp., 329 NLRB No. 47 (1999), the NLRB determined that the employer
violated the NLRA because its employee committee was not merely a
“unilateral mechanism” for brainstorming or sharing ideas. Rather,
the employer worked with the committee to refine and narrow
proposals and responded to the proposals.
Generally,
employee committees that have missions limited exclusively to
information gathering are allowed. Thus, in Stoody Co., 320 NLRB
No. 1 (1995), the NLRB determined that the employer did not violate
the NLRA when it formed an employee handbook committee since the
committee was explicitly directed not to discuss terms and
conditions of employment. Instead, it was to determine areas of the
handbook that were unclear or inconsistent with current practice.
Another area
that can be challenging for nonunion employers is e-mail. Many
employers allow employees to use e-mail to disseminate and exchange
a wide variety of information, including personal materials. Some,
however, try to prevent employee use of e-mail to discuss union and
other nonbusiness activities and so restrict their e-mail and other
communication systems to business use only. The NLRB generally
upholds policies limiting the use of communication equipment and
systems as long as the rules do not discriminate against unions
while allowing other employee personal activities.
So, for
example, in Adtranz, ABB Daimler-Benz, 331 NLRB No. 40 (2000),
vacated in part on other grounds, 253 F.3d 19 (D.C. Cir. 2001), the
NLRB determined that the employer can establish a policy prohibiting
the nonbusiness use of its e-mail system as long as that rule is
consistently applied. However, the NLRB also noted that if the
employer fails to enforce its rule against personal use, it may not
prohibit union matters as a topic of discussion on its e-mail
system. The bottom line is that if you allow employees to send and
receive nonwork-related e-mail, you may not restrict e-mail
discussion of union issues.
Because the
NLRA can impact you in so many different ways, you should have a
plan to comply with the law and to recognize potential problem
areas. You can help prevent NLRA claims by taking the following six
steps.
1. Review
your policies and procedures to ensure compliance with the NLRA.
Pay special attention to employee participation committees,
disciplinary procedures, and pay policies. In addition, you should
stay current on new NLRB decisions.
2. Make sure
employee participation committees do not negotiate with or make
recommendations to management. They should not deal with any issues
concerning terms or conditions of employment, such as pay, work
rules, and discipline. To enhance compliance with the NLRA, you
also may want to limit the committees specifically to information
gathering.
3. Consider
including in your disciplinary policy the right for employees to
request coworker representation during investigatory interviews,
when the results may be expected to lead to discipline. Although
you are not required to notify your employees of this right, your
policy should not prohibit such representation. In addition, you
should have a plan for responding to these requests.
4. Make sure
your pay policy does not prohibit wage discussions. Many employers
want to ban pay discussions in spite of the NLRA’s position.
Instead, you should encourage employees to direct questions or
concerns about compensation to the human resources department or
appropriate department head.
5. Evaluate
disciplinary actions carefully for any employee expressing
disapproval with management policies and procedures. You should be
cautious before disciplining any employee for making remarks that
involve NLRA-protected terms and conditions of employment, such as
pay, work rules, and discipline. However, employees who complain
about their own personal employment problems (as opposed to voicing
concerns about how policies affect the workforce) generally are not
covered under the NLRA’s protections.
6. Have your
attorney check your policies and procedures specifically for NLRA
compliance. Regular legal reviews, particularly when you make
policy changes, are a good form of compliance insurance and risk
control.
When the NLRA
was passed in 1935, it was intended to address an imbalance between
the strength and concentration of big industrial employers and the
newly emerging unions. But, over time, many of the abuses targeted
by the Act have been eliminated, and other employment laws
prohibiting discrimination and regulating pay and safety have
created many additional employee rights.
At the same
time, the economy has shifted from an industrial base to a service
and information base, and the structure of business has become more
defused and entrepreneurial. Plus, employees now have greater
mobility and many more opportunities. As a result, the balance in
employer/employee relationships has changed dramatically since the
original passage of the NLRA. Unfortunately, the NLRB’s enforcement
of the Act often appears to ignore these changes and assumes that
the original adversarial relationship is still the order of the day,
a stance that catches many nonunion employers by surprise. So, you
should not adopt a “head-in-the-sand” attitude and must take action
to protect against these claims. By following the six steps
outlined above, you can effectively manage your NLRA exposure. |
Personnel
Policy Service, Inc.
