Contributed by Caryl Flannery
Ok, maybe not you, but the Board definitely wants your non-union employees and they’re using Section 7 of the NLRA to get them.
In the past, Section 7 was looked upon primarily as bestowing the right to formally organize in labor unions. Over the last few years, however, the Board has been focusing on the section of the law which secures the right to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” NLRA, Sec. 7. It turns out the NLRB is of the opinion that those “other concerted activities” come under a pretty big umbrella and has been spreading the good news to non-union employees everywhere. In 2012, the NLRB ratcheted up their campaign by implementing a new page on their website called “Protected Concerted Activity” where they invite non-union employees to read NLRB Section 7 success stories “of workers across the country.” Areas in which the Board has asserted jurisdiction in the last year include:
- Social media policies – Last month, the Board ordered a private social services agency to reinstate five employees who were terminated for posting comments about their jobs on Facebook. Although the postings included profanity and criticism of another employee the Board found that the comments were protected because the original post included an invitation for comment from other employees on a work-related issue.
- Internal disciplinary investigations – Threatening the integrity of employers’ internal investigations of employee misconduct, the Board has held that employers can instruct employees not to discuss matters under investigation only where they can show a specific need to do so.
- “At will” statements in employee handbooks – The NLRB held that a statement in a handbook declaring that an employee’s “at will” status could not be modified under any circumstances violated the NRLA because it failed to make clear that union organizing and collective bargaining could alter the “at will” relationship.
- Class action waivers – Although at odds with several courts, the NLRB continues to maintain that waivers of class or collective action in arbitration agreements violate Section 7.
- Challenges to termination of employment – Disgruntled discharged employees who can’t make out a colorable EEOC claim are now filing unfair labor practice charges alleging termination in retaliation for engaging in concerted protected activity, such as complaining about safety concerns. The Board obligingly investigates all charges which, even if ultimately dismissed, can be costly to defend in terms of disruption of business and related costs.
What’s an employer to do? Carefully draft policies and handbooks and review disciplinary practices for language or procedures that could be viewed as chilling or restricting concerted activity. Focusing on clearly unprotected activity (such as Facebook posts that could constitute unlawful harassment) will deter unwanted attention from the NLRB.