NLRB who? Why do I care if I don't have a union?

by Davis Brown Law Firm
Contact

Most non-union employers think that the National Labor Relations Act is not applicable to their work force. Unfortunately, if that is what you think, your local NLRB office will be happy to point out how wrong you are. As we have seen with the NLRB’s stance on social media, Section 7 regarding concerted activity is broad in scope and ever present. The NLRB has a comprehensive reach and can affect work places regardless of size or any active union presence at the employer.

The primary issue here is the ability to engage in “concerted activity.” Concerted activity is traditionally viewed as the employee’s right to discuss burdensome workplace conditions and to meet with others to organize to form a union or to join an existing union. However, in the modern age with Facebook posts, critical blogs and a wide array of other items, concerted activity has taken on a much broader role. Blogging policies, social media issues and similar items all have their place in the concerted activity arena. However, employers sometimes forget that their policies regarding internal face-to-face communications can also create problems with the NLRB and rule compliance.

It is not uncommon for employers to discipline employees who have been a problem. A pot-stirrer or someone who is constantly complaining and just not playing well with others can be a detriment to everyone. That description of “not being a team player” can sometimes run afoul of the concerted activity rules. If not being a team player means you are critical of management and the NLRB determines that you treated this employee differently or terminated him/her because you were tired of hearing the complaints you could be in violation of the law.

Like social media, there are other areas where it can be difficult to balance concerted activity requirements with your other obligations under rules such as though promulgated by the EEOC. If you receive a complaint regarding employee misconduct, such as sexual harassment in the work place, typically you are going to be required to interview employees and to engage in an investigation. In doing so, many employers tell those people who are interviewed that they cannot reveal the information obtained in the interview or discuss the investigative process in order to protect the confidentiality of those involved and avoid potential retaliation. However, strict requirements of this type run directly contrary to the requirements of the NLRB as was set forth in the January 29, 2013 memorandum from Barry J. Kearney, General Counsel, for the NLRB.

The case referenced in the memo involves Verso Paper, Case 30-CA-089350. The matter was submitted for advice to the associate general counsel regarding a strict prohibition by Verso regarding discussing potential investigations. Verso had an employee conduct provision which stated:

“Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to insure that testimony is not fabricated, and to prevent a cover up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

It was the determination of Mr. Kearney, Associate General Counsel, that this rule was over broad and that no employer can “maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” Mr. Kearney goes on to state that such a work rule could “reasonably chill employees in the exercise of their Section 7 rights." Simply stated, employees have an inherent right to discuss discipline and disciplinary investigations.

This is a complex issue for employers because Verso was working to do the right thing. Employers do have a compelling interest in protecting the integrity of the investigation, preventing further harassment, intimidation, or retaliation. In fact, most of us have probably had the experience of a witness who chooses not to come forward or comes forward very late because he/she was fearful of potential retaliation and lack of confidentiality. This memo, which was written on January 29, (but not made public until April 19, 2013) places the employer squarely in the middle of conflicting EEOC requirements, common sense, and the NLRB.

One possible methodology would be to assess each investigation individually and apply confidentiality rules only where there has been a direct threat of retaliation. This would be a flexible assessment open to interpretation and what you view as being retaliatory might not be something the NLRB reviews as retaliatory.

Another potential way to address this matter would be to use language which has more inherent flexibility, such as requesting, because of the following reasons, i.e., intimidation and retaliation, that employees keep this matter confidential, but not discipline or terminate employees if confidentiality has been broken. Unfortunately, the imperatives of various agencies often clash, leaving us as the employers in the middle to try to figure out which rule to follow today.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Brown Law Firm | Attorney Advertising

Written by:

Davis Brown Law Firm
Contact
more
less

Davis Brown Law Firm on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.