On November 8, 2017, the United States Senate confirmed Vermont attorney Peter Robb as the next General Counsel for the National Labor Relations Board. The General Counsel effectively serves as the Chief Executive Officer of the NLRB, and his appointment may lead to changes in how the NLRB interprets the National Labor Relations Act (NLRA) as it relates to disputes between employers and employees in both union and non-union settings. This is a good time to review what the NLRA is and discuss how employers can avoid inadvertent liability under the NLRA due to their employment policies.
The NLRA and the NLRB: Since its enactment in 1935, the NLRA has aimed to protect the rights of both employees and employers, by encouraging collective bargaining and limiting harmful labor and management practices. The NLRB is the federal agency responsible for enforcing the NLRA and has regional offices throughout the country.
Who is covered? The NLRB has broad jurisdiction over the majority of non-government employers with offices in the United States. In evaluating jurisdictional limits, the NLRB has established standards which are based on a minimal level of interstate commerce for retailers, non-retailers, and other special categories. For example, a nursing home falls under the NLRB’s jurisdiction if its gross annual volume meets at least $100,000. In contrast, a private non-profit college or university’s gross annual volume must meet a minimum of $1 million for it to be subject to the NLRB’s jurisdiction.
Religious organizations pose an additional tier of consideration. The NLRB has asserted jurisdiction over employees who work in the operations of a religious organization that were not religious in character, such as a health care institution. However, the NLRB will not assert jurisdiction over employees of a religious organization if they are involved in effectuating its religious purpose, such as teachers in church-operated elementary and secondary schools.
Additionally, the NLRA’s protections do not extend to supervisors. A “supervisor” is defined as any individual with authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees” or to direct employees, so long as the action requires the use of independent judgment. Job title alone does not entail supervisory status, where the NLRB has considered tenured university faculty to be supervisors, based on their role within the academic institution. Certain other groups, such as government employees and independent contractors, are also excluded from protection under the NLRA.
What activity is protected? Pursuant to Section 7 of the NLRA, employees have the right to unionize, to bargain collectively, “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”, and to refrain from any of these activities.
Although the plain definition of “concerted” would imply two or more employees acting together, an activity may still be protected when an employee acts alone, if he or she intends to induce group activity or acts as a representative of at least one other employee. Moreover, courts have interpreted “for the purpose of . . . mutual aid or protection” as relating to wages or the terms and conditions of work that affect more than that individual’s interests. Thus, in order for an activity to be protected under the NLRA, it must be for the purpose of inducing or preparing for group action to correct a grievance or a complaint. Notably, the NLRA does not protect public venting of personal grievances, such as individual “gripes” where no group action is intended or contemplated. For instance, an employee’s complaint about overtime would not be protected if it was not made on behalf of other employees or for the purpose of inducing collective action.
How does this affect my organization? Pursuant to Section 8(a)(1) of the NLRA, employers are prohibited from interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7. In cases where an employee was improperly fired for engaging in a protected activity, the employer may be ordered to rehire the employee, provide the employee back pay for the period of unemployment, or pay dues, fines or other costs.
What employment policies are allowed? While firing an employee who has exercised his or her rights under the NLRA constitutes a clear violation of the NLRA, an employer should also be mindful of unintentionally preventing employees from exercising their rights through employment policies that are unlawfully broad.
An employer may prohibit disclosures of confidential information such as trade secrets, but it may not prevent employees from discussing wages, hours, and other terms and conditions of their employment with fellow employees or even non-employees. If the employee were to speak with the media, however, the employer can at least limit who is able to speak for the company in an official capacity. An employer may prevent illegal use of its trademarks, but it cannot issue a blanket ban on the use of company logos. Additionally, an employer may impose a policy requiring employees to be respectful and courteous to clients and customers, yet it cannot prohibit an employee from criticizing or protesting the employer’s policies or treatment of employees. Moreover, an employer may ban the use of cameras to harass other employees, but it cannot prohibit the taking of photographs and videos in furtherance of a protected concerted activity. As these few examples demonstrate, each policy within an employee handbook should be carefully reviewed to insure that the guidelines are clear, specific, and not in violation of a protected concerted activity under the NLRA.
Although the NLRA provides certain protections for employees, it also recognizes the legitimate business interests of employers, such as promoting positive interactions with clients and customers, protecting trademarks and trade secrets, and the right to speak with one corporate voice.