Employers often rely on employee committees to enhance employee engagement and gain valuable insight regarding areas of group concern, but a new NLRB ruling in T-Mobile, Inc. teaches employers that if they are not managed carefully, those committees might violate a relatively unknown provision of the National Labor Relations Act. (The case is T-Mobile USA, Inc., 372 NLRB No. 4 (November 18, 2022).
INTRODUCTION
As the new year begins, there are many reasons to believe that healthcare union organizing could increase significantly in 2023, as challenges related to recruitment, retention, and staffing persist and hospital finances are stretched to a near breaking point. These challenges will only be magnified by several regulatory changes—particularly at the National Labor Relations Board (NLRB)—which are designed to tilt the balance of power toward labor unions. Consequently, employers who wish to attract and retain talent and remain union-free must be proactive. That starts with building and reinforcing a workplace culture of trust.
In the healthcare setting especially, one valuable tool for building this culture is through employee-management committees. These committees are designed to offer employees a direct line to leadership on staffing concerns and other issues impacting their work experience, including their professional practice, their workflow/work environment, and employee and patient safety. However, when utilizing this tool, the NLRB’s recent T-Mobile decision reminds employers that they must not run afoul of Section 8(a)(2) of the National Labor Relations Act (NLRA).
SUMMARY OF THE LAW AGAINST EMPLOYER DOMINATION OF A “LABOR ORGANIZATION”
When it comes to “labor organizations,” people usually think of formal,third-party unions. But the NLRA’s construction of a labor organization is actually much broader. A “labor organization” is defined as “any organization of any kind . . . in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances . . . or conditions of work. And the NLRA makes it an unfair labor practice for an employer to “dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” 29 U.S.C.S. § 158(a)(2). This restriction can be implicated by the employer’s establishment of an internal employee committee that deals with terms and conditions of employment.
The leading NLRB case on the subject is Electromation, Inc., 309 N.L.R.B. 990 (1992), where the Board found that five employee "action committees" constituted labor organizations and had been dominated by the employer. The Board observed that the only purpose of the committees was "to address employees' disaffection concerning conditions of employment through the creation of a bilateral process involving employees and management in order to reach bilateral solutions on the basis of employee-initiated proposals." Id. The Board described such a bilateral process as "the essence of 'dealing with' within the meaning of” the NLRA.
Thus, under Electromaton, a committee constitutes a labor organization if it involves: "(1) employee participation, (2) a purpose to deal with employers, (3) concerning itself with conditions of employment or other statutory subjects, and (4) if an 'employee representation committee or plan' is involved, evidence that the committee is in some way representing the employees." NLRB v. Webcor Packaging, 118 F.3d 1115 (6th Cir.1997).
Most recently in T-Mobile, Inc., the Board applied Electromation and found that an employer violated the NLRA by setting up a “T-voice” committee as a vehicle through which customer service representatives (CSRs) could be bring work-related issues to its attention. See T-Mobile USA, Inc., 372 NLRB No. 4 ( November 18, 2022). T-Mobile selected CSRs from each call center and paid them to serve as representatives for four hours per week. Their role was to (1) solicit, collect, and submit concerns from co-workers to managers through a SharePoint database, and (2) discuss those concerns, which included terms and conditions of employment, during regular meetings with site senior managers. In these circumstances, the Board found that the T-Voice committee unlawfully “dealt with” the employer with respect to terms and conditions of employment. Therefore, T-Voice was a labor organization, and T-Mobile violated the NLRA.
Notably, the Board distinguished the T-voice committee from prior decisions in which employee groups were found not to violate the Act. These cases included situations where the committees did not act in a representative capacity and did not otherwise “deal with” the employer as to terms and conditions of employment. See, e.g., Polaroid Corp., 329 N.L.R.B. 424 (September 30, 1999) (holding that a quarterly safety conference where “any individual employee may participate” and submit suggestions and comments on safety issues was a lawful program); EFCO Corp. , 327 N.L.R.B. 372, (December 31, 1998) (employee suggestion screening committee did not act as the employees’ representative because it “did not canvass employees [for suggestions] but only informed them as to the action taken on their suggestions.”).
STEPS TO MINIMIZE RISK
Unfortunately, the NLRB has not been consistent when interpreting Section 8(a)(2)’s restrictions, and the recent T-Mobile case arguably represents a marked expansion from the Board’s prior precedent. Nonetheless, there are several steps employers can take to minimize their risk when structuring these committees.
First, make clear that each member speaks for themselves and does not represent those who share the group’s stated purpose. Relatedly, the members should not solicit and collect group concerns, but rather, should speak only for themselves. Stated another way, the group should not act in a “representational capacity.” Understandably, these limitations may frustrate the typical purpose of a committee. But those frustrations can be mitigated by having members rotate frequently, inviting individuals to participate, or by having management directly solicit issues from individuals. Finally, the employer should stress that if members are permitted to make suggestions, they are only that – suggestions which management can consider or reject at its sole discretion. The group is not empowered to bargain or negotiate with management on anyone’s behalf.
Of course, there are other ways to avoid the reach of NLRA restrictions. For example, these restrictions are not implicated by open door practices with individual employees, by groups created and maintained independently by employees without substantial employer assistance, and by groups that focus on technical and patient issues, rather than workplace terms and conditions. Further discussion of those options is beyond the reach of this article, but they remain viable considerations.
CONCLUSION
In the fight to attract and retain employees in a competitive labor market, employers—particularly those who wish to remain union-free—must create a workplace culture that values employee feedback and engagement. Employee committees remain a valuable tool, but employers must structure and operate those committees thoughtfully and carefully to comply with the law.
