Sunday, May 26, 2019
Wednesday, 23 July 2014 20:00

Why the NLRA Remains Part of Our Future

Written by Deborah C. Brown, SPHR

The level of expertise that non-attorney HR professionals demonstrate as it relates to employment law nuances is, in my experience, often quite impressive. From the intricacies of tip pooling to the subtleties of a Title VII “caregiver discrimination” theory, HR professionals are adept at being in tune with legal developments and applying those developments within the workplace. However, HR professionals working in non-union environments may have little practical familiarity with the National Labor Relations Act (NLRA). Thus, while it seems paradoxical to suggest looking back as part of a magazine issue devoted to HR’s future, I nonetheless do just that in suggesting that the NLRA is and should remain an HR core competency in the future.

Enacted in 1935, and amended several times since, the NLRA is one of the older labor laws, and it was enacted after years of federal opposition to organized labor. The law’s underpinning focused on improving overall working conditions rather than the individual attributes and characteristics which would dominate later EEO legislation and which drives employment litigation today. The NLRA remains relevant today because its broad scope extends beyond traditional labor relations.

A lack of NLRA familiarity by private sector HR professionals is not surprising. Florida is not exactly known as a hotbed of union activity, and it does not have the historically unionized manufacturing base one often sees in other parts of the country. While much of Florida’s public-sector workforce is unionized under Florida’s Public Employees Relations Act, the vast majority of Florida private sector employees are nonunion. This has spawned a generation of HR professionals who may never have worked in a unionized environment or even been involved in defending a union organizing campaign.

“The NLRA remains relevant today because its broad scope extends beyond traditional labor relations.”

Ten years ago, this was probably of little consequence. While the National Labor Relations Board (NLRB or Board), the agency’s governing body, had on occasion taken positions that could affect a non-union environment, non-union employers often paid little attention to the NLRB’s activities. Take, for example, the Board’s position that pay secrecy rules (rules that treat salaries as confidential and prevent discussion of pay among co-workers) violate the NLRA. Notwithstanding various Board and court holdings on that point, such rules remain commonplace in non-union environments.

But in the past several years, it has become apparent that the NLRB has focused its resources on applying the broader protections of the NLRA to the non-union workforce even while supporting the rights of employees to unionize. Although the NLRB is ostensibly neutral, efforts like the (now-abandoned) NLRA workplace notice-posting rule caused many employers to view the Board under the Obama administration with unease.

Likewise, the Board recently started an offensive, now largely tempered, against “at will” disclaimers in employee handbooks, suggesting that many such statements could be overly broad and thus a violation of an employee’s Section 7 rights. Finally, many employers suspect that the current Board will soon be reviving the so-called “quickie election” rule, which if passed would dramatically shorten the time between the filing of a union election petition and the election by limiting employers’ ability to be heard on pre-election and post-election disputes.

The Board has even developed an app for iPhone and Android users to advise employees of their NLRA rights. Whether in response to the overall decline in union membership, the Board’s desire to establish its own relevance in the modern era, or even a desire to foster unionization as part of its goal (at least while Democrats are in the White House), one thing is clear: HR professionals without a traditional labor background need to understand the basic NLRA framework and its potential impact on non-unionized workplaces.

The reason NLRA knowledge remains relevant today is two-fold. First, a series of Board decisions have highlighted the NLRA’s reach beyond the unionized workplace, and thus increased awareness of the risk associated with a lack of knowledge about NLRA requirements and prohibitions. Banner Health System is one such decision. In that case, the Board held that an employer’s blanket policy requiring employee-witnesses to maintain confidentiality of workplace investigations interfered with the employees’ rights under the NLRA to engage in “protected concerted activity” and thus was in violation Section 7 of the Act because the policy interfered with the right of employees to communicate about workplace issues. Many employers view that directive as inconsistent with the EEOC’s enforcement guidance, suggesting that an effective employer policy should include assurance that the employer will protect the confidentiality of harassment complaints to the extent possible. While confidentiality can still be required in some limited circumstances, the NLRB’s decision requires a case-by-case assessment and justification in each investigation.

“The Board has even developed an app for iPhone and Android users to advise employees of their NLRA rights.”

Another example involves the NLRB’s decisions in the area of social media. Specifically, and with several large, nonunion employers as the recipients of agency scrutiny, the Board has been extraordinarily active in placing significant restrictions on even private, non-union employers’ ability to discipline employees for social media behavior, even when such behavior seems directly antagonistic to the employer’s best interest. Consider for example the case of Karl Knauz Motors, Inc., in which the NLRB ordered the employer to rescind its social media policy, which, among other problems, contained a provision requiring employees to be “courteous, polite, and friendly” to customers and employees and not to use “language which injures the image or reputation” of the employer. This particular “courtesy” rule was held by the agency to violate the NLRA because employees could “reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language’ which injures the image or reputation of the Dealership as encompassing Section 7 [protected, concerted] activity.”

A recent administrative law judge’s (ALJ) decision from the agency provides even more insight into the Board’s reach. In Laurus Technical Institute, an ALJ both struck down a “no gossip” policy as overly broad and ordered reinstatement of an employee fired pursuant to that policy. The policy was invalidated because it was deemed “overly broad, ambiguous and severely restrict[ed] employees from discussing or complaining about any terms and conditions of employment” and thus violated the NLRA.

A final example of non-union employee protection is an issue symbolic of the shifting nature of NLRA precedent based on the Board’s composition. Specifically, it is the right (or lack thereof) of representation in employee disciplinary proceedings in a non-union environment. In the Supreme Court’s landmark Weingarten decision in 1975, it was held that union-represented employees have a statutory right under the NLRA to insist on having a union representative present at an investigatory interview where the employee reasonably believed could lead to disciplinary action. Since that date, the NLRB at first rejected an extension of this right to nonunion employees (in E.I. Dupont), then approved extending Weingarten rights to non-union workers (in Epilepsy Foundation), and then again reversed itself and said no to non-union employee Weingarten rights once more (in IBM Corp.).

The second reason supporting the NLRA’s current and future relevance is the apparent return of traditional work stoppages and growth of the “worker center” movement. In 2013, hundreds of fast food workers walked off the job to protest for higher wages, but not as an official labor action. Rather, the activity was coordinated by various labor advocacy groups loosely led by the Service Employees International Union. Throughout the country, a new trend of “worker center” activity is rapidly expanding. That trend was discussed at some length in Robert J. Grossman’s article Leading From Behind?, featured in HR Magazine’s December 2013 issue. Indeed, on the eve of this article’s submission, the NLRB Office of the General Counsel has issued a consolidated complaint against Walmart alleging that the company violated the rights of its employees as a result of activities surrounding employee protests in 13 states.

As union membership has declined to historic lows, traditional labor unions have latched onto activities like the one-day fast food strikes and the creation of worker centers as a new model of activism. These worker centers, often organized as non-profit groups that purport to provide training, education, and other services, but also can serve as advocates for worker rights as well. In recent years, the debate over whether these worker centers are in fact “labor organizations” under the NLRA has escalated, and some members of Congress have begun to question the Board’s failure to properly classify and regulate these entities. One website, www.workercenterwatch.com, has even been set up to detail unions’ involvement in this trend.

The issue’s significance to employers is that worker centers which are not considered “labor organizations” arguably avoid NLRA restrictions on secondary picketing and protracted recognitional picketing. Worker centers are also not subject to the regulatory reforms that came about with various NLRA amendments granting workers protection from union unfairness and discrimination, and from requiring union transparency and reporting in financial matters. That lack of accountability can upset the delicate balance of employer, employee, and union rights and create difficult situations for employers to manage. As HR professionals, our role is to understand trends like these and how to assist our employers in managing the potential negative effects of these new tactics. Part of that effort involves learning the fundamentals of the NLRA, how it defines a labor organization, and the boundaries of acceptable conduct under the NLRA.

The growth of worker centers and non-traditional tactics epitomizes why HR professionals should know at least the fundamentals of NLRA.

What we do know from these developments is that, for HR professionals in non-union environments, the NLRA can be a trap for the unwary. Standard concepts of discrimination, retaliation, wage and hour law, and workplace safety are ingrained. Where the NLRA differs is that the broader spectrum of “protected, concerted activity” (called “PCA”) is more than just a prohibition against discrimination for “union activity.” The PCA analysis moves beyond the concept of advocating for or against an issue or person because of some reason the law has chosen to protect (like race, sex, color, age, etc…) or the concept of establishing a minimum standard (like minimum wage or a 12-week FMLA entitlement). The PCA framework protects efforts to improve working conditions, often beyond what may be legally required, through some form of collective action. The employees’ (and sometimes outsiders’) pursuit of those aims is often disruptive and contentious. But without an NLRA background, some HR professionals may not even recognize that conduct which sometimes looks like “employees behaving badly” and for which adverse employment action is being considered may trigger a legal issue under the NLRA. Because the NLRA grants broad powers to a politically volatile Board, and because the Board’s recent rulemaking and adjudicatory efforts demonstrate a heightened focus on the non-union workplace, the NLRA remains a foreseeable part of HR’s future.

Deborah C. Brown, SPHR, is an attorney with Thompson, Sizemore, Gonzalez & Hearing, P.A. in Tampa, Florida, a law firm that represents employers in labor and employment law matters.