Traditional Labor Law in a Non-Union Setting

Traditional Labor Law in a Nonunion Setting

I. Introduction

Employers who don’t have union employees amongst their ranks often do not realize a need to even consider the application of the National Labor Relations Act (“NLRA” or “the Act”) on their employment decisions. However, despite the absence of a union, an employer may find itself before the National Labor Relations Board (the “Board”), charged with what the Board deems a clear violation of the Act.

The Board and the courts have expanded the view of what, under the Act, constitutes protected behavior in the workplace. NLRA protections traditionally found applicable to union employees have been extended to nonunion employees. Nonunion employers must, therefore, develop a knowledge and understanding of traditional labor law concepts as they apply to employee-relation matters such as investigations, discipline and policies.

II. Defining Section 7 Rights under the NLRA

When discussing the rights and protections of nonunion employers under the federal labor laws one must first understand the source of these protections. Section 7 of the Act, which has historically been the source of nonunion employee protections under the NLRA states in relevant part that –

Employees shall have the right to . . . engage in . . . concerted activities for the purpose of . . . mutual aid or protection . . . .

See 29 U.S.C. § 157. As this section has been interpreted by the Board and the courts, an employee’s right to engage in concerted activity for mutual aid and protection in the workplace goes beyond their right to simply engage in union related activity. Section 7 of the Act guarantees employees the right to engage in concerted activities for the purpose of mutual aid or protection and Section 8(a)(1) of the Act enforces this guarantee by making it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. These guarantees and protections have been afforded equally to nonunion employees and union employees and a collective bargaining agreement need not be in effect for the Act to apply. See NLRB v. McEver Engineering, Inc., 784 F.2d 634 (5th Cir. 1986), citing E.I. du Pont de Nemours and Co. v. NLRB, 707 F.2d 1076, 1078 (9th Cir. 1983); and NLRB v. Columbia University, 541 F.2d 922, 931 (2nd Cir. 1976). Employees' activities are protected by Section 7 if they might reasonably be expected to affect their terms or conditions of employment. Brown & Root, Inc. v. NLRB, 634 F.2d 816 (5th Cir. 1981). Thus, when an employer disciplines or terminates an employee for exercising his or her Section 7 rights, whether the activity is union related or not, it is deemed an unfair labor practice.

A. Concerted Behavior

In order to be covered by the protections of the Act, an employee’s actions must be both “concerted” and for “mutual aid and protection” as these items have been interpreted by the Board and the courts. Historically, employees covered by collective bargaining agreements, “union employees,” have found greater favor with the Board and the courts in the determination as to whether they have engaged in “concerted” behavior. This is justified primarily because an individual employee’s invocation of a right protected by a collective bargaining agreement is believed an integral part of the process that gave rise to the agreement, and thus, a concerted activity in a very real sense. See Meyers Industries, 281 NLRB 882, 884, 1986 WL 54414 (NLRB Sep 30, 1986). A second rationale is the individual’s assertion of a right under a collective bargaining agreement is assumed to affect the rights of all employees covered by the agreement. Id. at 885; see also Melissa K. Stull, Annotation, Spontaneous or Informal Activities of Employees as “Concerted Activities, Within Meaning of §7 of National Labor Relations Act (29 U.S.C.A. §157), 107 A.L.R. FED. 244, n.17 (1992).

In a nonunion setting, however, to find an employee’s actions to be “concerted” it is generally required that the employee be engaged in activity “with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries, supra, 281 NLRB 882, 884, 1986 WL 54414 (NLRB Sep 30, 1986). To be protected as a concerted action under the NLRA, however, it is not necessary that an employee be appointed by fellow employees to represent their interests. The relevant inquiry is whether an individual employee acted with the purpose of furthering group goals. See NLRB v. Caval Tool Div., Chromalloy Gas Turbine Corp., 262 F.3d 184 (2nd Cir. 2001). Thus, while the conduct of a single employee can constitute concerted activity and such behavior may include actions by employees who initiate group activity or act as spokespersons for other employees on a matter of common concern, for nonunion employees to act in concert they must generally act as a group or for the benefit of the group. Even if job-related, individual gripes with an employer are not generally protected by Section 7 because this is not “concerted” activity. See Nancy J. King, Labor Law for Managers of Nonunion Employees in Traditional and Cyber Workplaces, 40 Am. Bus. L.J. 827 (2003). It is also important to note that concerted activity may involve organized employee protests, as well as, more spontaneous informal employee conduct. See Stull, supra, 107 A.L.R. FED. 244

B. Mutual Aid and Protection

Regardless of the concerted nature of employee activity, however, in order to find protection under the provisions of Section 7, the activity must be for “mutual aid and protection.” The Supreme Court in Eastex, Inc. v. NLRB concluded that the mutual aid and protection clause of Section 7 extended the Act’s protection beyond activities involving unions and collective bargaining. Eastex, Inc. v. NLRB, 98 S.Ct. 2505 (U.S.Tex. 1978). Thus, even if it is not union-related, Section 7 protects employees who engage in concerted activity for the “mutual aid and protection” of other employees. The court in Eastex went so far as to find that Section 7 extends to employee efforts “to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship.” Thus, protection is even afforded employees who seek to improve their working conditions through “administrative and judicial forums” and through “appeals to legislators to protect their interests as employees.” Id.

C. Limitations on Protections for Certain Conduct

The courts have carved out exceptions to Section 7 protection for certain employee conduct. For instance, employees who falsely and publicly disparage their employer or its products and services will not enjoy the Act’s protections when engaging in such conduct. See St. Luke’s Episcopal-Presbyterian Hospital, Inc. v. NLRB, 268 F.3d 575 (8th Cir. 2001) [The employee, a nurse, appeared on a local television news broadcast and accused the employer hospital of jeopardizing the health of mothers and babies by altering the shift assignments and responsibilities of the registered nurse assistants in labor and delivery]. “[T]here is a point where [an employee’s] methods of engaging in [protected activity] would take them outside the protection of the Act.” Id. at 581, quoting NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972). Thus, if an employee is terminated because he or she has made false and disparaging public statements regarding their employer, no refuge will be afforded them under the Act.

In Carleton College v. NLRB, 230 F.3d 1075, 1080-81 (8th Cir. 2000), the employee, an adjunct professor and organizer of a committee of adjunct professors, became sarcastic and vulgar during a meeting being held with the dean of the college to discuss the school’s professional expectations. The professor expressed a disloyalty to the school and refused to commit to abiding by the school’s professional expectations. As a result, the dean decided not to offer him a contract. While it was determined that the professor was engaged in concerted activity, on appeal the Eighth Circuit held that “misconduct that is ‘flagrant or render[s] the employee unfit for employment’ is unprotected.” Factors to be considered in this regard include “the nature of the misconduct, the nature of the workplace, and the effect of the misconduct on the employer’s authority.” Id. at 1081. Thus, employee conduct, though concerted, may not be protected if it is of such an extreme nature that it renders that employer’s authority to protect its own business interests void.

An additional area of concerted employee activity where an employee may find his conduct unprotected involves employee work stoppages. In cases where a group of employees refuse to work while on the employer’s premises, the Board and the courts will balance the employees’ rights under Section 7 with the employer’s property rights. The court generally will find a violation of Section 7 rights when an employer simply fires employees acting in concert because they will not return to work, however, an employer who fires employees because they will not leave the workplace after refusing to work may not violate Section 7 protections. Molon Motor and Coil Corp. v. NLRB, 965 F.2d 523, 526 (7th Cir. 1992).

In some cases, however, involving employee walk outs, the Board and the courts have considered the nature and specific circumstances of the walk outs to be the determining factors. In Vemco, Inc. v. NLRB, 79 F.3d 526 (6th Cir. 1996), involving a walk out by nonunion employees to protest the chaotic condition of the workplace after remodeling, the Sixth Circuit refused enforcement of a Board decision finding protected activity, emphasizing that the employees were not required to work in the specific location and had made no cognizable demand for any change in working conditions or employment terms. In Magic Finishing Co., 323 NLRB 234 (1997), however, the Board found that three employees engaged in protected concerted activity when they walked out in protest of their unbearably hot working conditions. The Board distinguished the court’s decision in Vemco on the basis that these three employees were required to work under oppressive conditions, which they protested by walking out. Id.; see also Patrick Hardin, The Developing Labor Law, 188 -89 (4th ed.)

III. Specific Areas of Concern

A. Weingarten Rights and the Path to IBM Corp.

In the case of NLRB v. J. Weingarten, 420 U.S. 251, 257 -58 (1975), a well settled rule was established that, pursuant to rights established by Section 7 of the Act, a union employee is entitled to have a union representative present in an investigatory interview with his or her employer when the employee may reasonably believe that the meeting may result in discipline. Seven years later in Materials Research Corp., 262 NLRB 1010 (1982), the Board extended this right to employees in a nonunion setting. In that case, the Board relied on the fact that Weingarten emphasized that the right to assistance of a representative is derived from the Section 7 protection afforded to concerted activity, rather than from a union’s right pursuant to Section 9 of the Act as the employee’s representative for collective bargaining. Thus, the Board in Materials Research Corp. determined that the ability to avail oneself of this protection does not depend on whether the employees are represented by a union. Id. at 677. The ruling in Materials Research Corp was short lived, however, as in Sears, Roebuck & Co., 274 NLRB 230 (1985), the Board overruled Materials Research Corp. and held that Weingarten principles do not apply in circumstances where there is no certified or recognized union. In the Sears case, the Board rejected the prior decisions reliance on the fact that Weingarten rights are based on Section 7, and focused on Section 9 rights pertaining to collective bargaining authority exclusive to unionized settings. The Board stated “[t]he Weingarten rule, in a unionized setting, is wholly consistent with established principles of labor management relations. Thus, pursuant to Section 9 and related provisions of our Act, a duly recognized or certified union is vested with the exclusive authority to represent unit employees and deal with the employer on all matters involving terms and conditions of employment, including wages, hours, benefits, and discipline. Accordingly, if an employer seeks to take an action that affects any of its employees’ terms and conditions of employment, it must recognize the union’s legitimate representational rights and, therefore, it is not free to deal with the employees on an individual basis over the employees’ objections. ... When no union is present, however, the imposition of Weingarten rights upon employee interviews wreak havoc with fundamental provisions of the Act.” Id. at 230-31.

Later in E.I. DuPont & Co., 289 NLRB 627 (1988) the Board maintained the position taken in Sears, but expanded its reasoning and analysis. The Board in DuPont stated that even in a union setting when employees engage in concerted activity for mutual aid and protection, such activity is not without limitations. The Board must balance the employer’s interests in maintaining “discipline in their establishments” against employees’ interests in engaging in the activities covered by the broad language of Section 7.” The Board went on to review the courts considerations in Weingarten when balancing the competing interests in that case. Id. at 629. The Board determined that in a nonunion setting, several of the Weingarten interests favoring recognition of the rights established therein are either not present or less compelling in a nonunion setting. The Board pointed to the following considerations in Weingarten: 1) A union representative present at an investigatory interview might be able to safeguard “not only the particular employee’s interest, but also the interests of the entire bargaining unit. 2) A knowledgeable union representative could assist the employer in eliciting favorable facts that an inarticulate employee lacking experience in such matters might be too fearful or unable to mention. 3) A union representative may save the employer time in the investigatory process and likewise act as a factor conducive to the avoidance of formal grievances through the medium of discussion and persuasion conducted at the threshold of an impending grievance. 4) Permitting a union representative at an investigatory interview is in full harmony with actual industrial practice, noting that such rights are often provided for in collective bargaining agreements. The Board found that these considerations in a nonunion setting are either much less likely to be achieved or are irrelevant. Id. at 629. Thus, the board affirmed the position held in Sears.

The Board’s position in Sears and DuPont lasted for the next 15 years when in the case of In Re Epilepsy Foundation of Northeast Ohio, 331 NLRB 676, 677 (NLRB 2000), the Board again reversed course, rejecting the rationale of Sears and DuPont, and finding renewed favor with the Materials Research analysis. The Board in Epilepsy Foundation stated that “the Board was correct in Materials Research to attach much significance to the fact that the court’s Weingarten decision found that the right was grounded in the language of Section 7 of the Act, specifically the right to engage in ‘concerted activities for the purpose of mutual aid or protection.’” Id. at 678. Epilepsy Foundation found that the rationale of Materials Research is equally applicable in circumstances where employees are not represented by a union, for in these circumstances the right to have a coworker present at an investigatory interview also greatly enhances the employee’s opportunities to act in concert to address their concern ‘that the employer does not initiate or continue a practice of imposing punishment unjustly.’ Thus, affording Weingarten rights to employees in these circumstances effectuates the policy that ‘Section 7 rights are enjoyed by all employees and are in no wise dependant on union representation for their implementation.’” Id. at 678, quoting Glomac Plastics, Inc. 234 NLRB 1309, 1311 (1978). On appeal of Epilepsy Foundation to the D.C. Circuit Court of Appeals, the court agreed with the Board and found that “the presence of a coworker gives an employee a potential witness, advisor, and advocate in an adversarial situation, and ideally, militates against the imposition of unjust punishment by the employer. Epilepsy Foundation v. NLRB, 268 F.3d 1095, 1102 (D.C. Cir. 2001).

The Board’s ruling in Epilepsy Foundation, however, has recently found disfavor with the current Board, falling again to reasoning similar to that expressed in the DuPont case. On June 9, 2004, the Board in IBM Corporation and Kenneth Paul Schult, Robert William Bannon and Steven Parsley, 341 NLRB No. 148 (NLRB 2004), overturned Epilepsy Foundation. Thus, as before, in a nonunion environment, an employee’s request for a co-worker’s presence during an investigatory interview need not be honored regardless of the employee’s belief that disciplinary action may result.

Many would surmise that this latest change in the Board’s position, as hypothesized regarding changes in the past, is more a result of the change in political administrations, than anything else. The Board in IBM, however, predicated its ruling on many of the ideals expressed in DuPont, as well as, some additional concerns that had been raised in and since Epilepsy Foundation. After first finding that the Board’s position in both DuPont and Epilepsy Foundation with regard to Weingarten rights represent permissible interpretations of the Act, the Board stated that it has the discretion and the “duty to choose amongst permissible interpretations of the Act to best effectuate its overarching goals.” IBM, supra, quoting Slaughter v. NLRB, 794 F.2d 120 (1986).

With a rationale based in notions of a changed workplace environment and new security concerns raised by incidents of national and workplace violence, the Board stated that the “features of the contemporary workplace leads us to conclude that an employer must be allowed to conduct its required investigations in a thorough, sensitive, and confidential manner. This can best be accomplished by permitting an employer in a nonunion setting to investigate an employee without the presence of a coworker.” IBM, supra.

For some time, severe criticisms have been raised regarding the practical implications of Epilepsy Foundation’s mandate for representation in nonunion employee interviews. As Section 7 rights under Epilepsy Foundation also prohibited the employer from interfering in the employee’s choice of coworker representative, an employee could take advantage of his right to representation to collude with a coworker on a story to impede the employer’s investigation attempts. While an employer could forego the interview in such situation and give the employee the option of either going forward with the interview alone or not being interviewed at all, such a course of action could cost the employer its ability to conduct a complete investigation. In a sexual harassment context, this could have the effect of subjecting the employer to liability for failure to conduct a thorough investigation. Thus, during Epilepsy Foundation’s reign, an employer had to carefully consider its course of action in this regard. See Epilepsy Foundation, supra, at 695. But see Pacific Gas & Elec. Co., 253 NLRB 1143, 1143-44 (1981) (An employee’s right to choose a representative was limited to the extent that the coworker was willing to be a representative and the coworker must be available. If the coworker was unavailable or unwilling to participate, under Epilepsy Foundation, the employee was required to choose another who was available and/or willing to participate. The employee could not delay the interview while waiting for a desired coworker representative). In IBM, the Board gave voice to these concerns, as well as, concern regarding the need for confidentiality in the investigation process. IBM, supra. The Board, in conclusion, found that, on balance, the right of an employee to a coworker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations. Id.

B. Employee Handbooks Prohibitions

An area of Section 7 protection in the nonunion environment often overlooked by employers involves employer policies contained in handbooks and other employee literature which prohibit various types of employee conduct. Policies that prohibit employee conduct considered to be concerted protected activity will be found an unfair labor practice.

In Kinder-Care Learning Centers, Inc., 299 NLRB 1171 (1990), an employer maintained a policy within its employee handbook restricting employee communications to third parties and requiring that employees first bring their work-related complaints to the attention of the employer’s “center director” or process them through the employer provided complaint procedure. The policy also stated that an employee’s failure to follow this policy could result in disciplinary action up to and including termination. The Board determined that although the rule did not on its face prohibit employees from approaching someone other than the employer concerning work-related complaints, it provided that the employee first report such issues to the employer or risk subjection to discipline. Thus, the employer’s rule did not merely state a preference that employees follow its policy, it required compliance and such a rule reasonably tended to inhibit employees from bringing work-related complaints to, and seeking redress from, entities other than the employer, and restrained the employees’ Section 7 rights to engage in concerted activities for collective bargaining or other mutual aid or protection. Id. at 1172. the Board found this policy to be unlawful.

1. Confidentiality and Wage Secrecy Policies

In Phoenix Transit System, 337 NLRB No. 78 (2002), the Board held that employees have a Section 7 right to discuss sexual harassment complaints among themselves and that employer policies that restrict such discussions will violate the Act. In this case the rule was originally promulgated during an active investigation which ended in two weeks, but was applied and enforced as a result of separate events that occurred at a later date. The rule prohibited discussion even among the affected employees whom the respondent initially assembled at a meeting to solicit information concerning the complaint. Under these circumstances, the Board found that the employer, having failed to provide a sufficient justification for maintaining the rule, violated the Act.

Compare Phoenix Transit System, however, to Caesar’s Palace, 336 NLRB No. 19 (2001), where the Board found that the employer did not violate Section 8(a)(1) by maintaining and enforcing a confidentiality rule during an ongoing investigation of alleged illegal drug activity, where the confidentiality directive was given to each employee who was separately interviewed, the investigation involved allegations of a management cover-up and possible management retaliation, as well as threats of violence, and the confidentiality rule was intended to ensure that witnesses were not put in danger, evidence was not destroyed, and testimony was not fabricated. Clearly, upon circumstances where such rules are enforced during the period of an active investigation with sufficient justification, the Board may find the rule unlawful. Here again, the Board is engaging in a balancing of interests, determining whether the exercise of Section 7 rights by employees is outweighed by an employer’s legitimate business interests.

More recently in Double Eagle Hotel & Casino And International Brotherhood of Electrical Workers, Local No. 113, 341 NLRB No. 17 (2004), the employer’s handbook contained, among other things, a rule prohibiting the disclosure of confidential information to other employees. The types of information considered by the policy to be confidential included disciplinary information, grievance/complaint information, performance evaluations, salary information, salary grade, types of pay increases, and termination data for employees who have left the company. The policy further provided that any breach or violation of the policy would lead to disciplinary action up to and including termination. The Board stated that the appropriate inquiry is “whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights. Where the rules are likely to have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an unfair labor practice, even absent evidence of enforcement.” Id., quoting Lafayette Park Hotel, 326 NLRB 824, 825 (1998). Considering the unambiguous statement in the policy of what items may not be discussed and the explicit warning of discipline, the Board found the handbook policies plainly infringed upon Section 7 rights and violated Section 8(a)(1). The policy’s plainly stated prohibition against the discussion of wages and work related issues between employees represented a clear violation of the Act of which any employer should be wary.

2. No-Solicitation/Distribution Policies

Employees have long been held to have rights pursuant to Section 7 to engage in union activity in the form of solicitation and distribution of material. See Republic Aviation Corp. v. NLRB, 324 US 793 (1945). This Section 7 right, as with others, will extend to a nonunion workplace when employees engage in concerted activity in the form of solicitation and/or distribution of materials for the purpose of mutual aid and protection. Employees are entitled to engage in solicitation in work and non-work areas when the activity occurs on non-working time. See Republic Aviation Corp., at 803. Employees are entitled to engage in distribution of literature regarding protected concerted activities on non-working time, but only in non-working areas. See Stoddard-Quirk Manufacturing Co. 138 NLRB 615, 616 (1962).

Applying the balancing of interests used by the Board in most Section 7 cases, the Board has generally determined that a no solicitation rule is unlawful if it unduly restricts the Section 7 activities of employees during periods and in places where these activities do not interfere with the employer’s operations. See Our Way, Inc., 268 NLRB 394 (1983), and Laidlaw Transit, Inc., 315 NLRB 79, 82 (1994). For example, rules which prohibit employees’ concerted activities, including solicitation to sign union authorization cards, on break-times or mealtimes are overly restrictive of employees’ Section 7 rights to self-organization, and are unlawful. Rules which require employees to get approval from the employer for solicitations are also overly restrictive of employee rights, and are unlawful. See In Re Adtranz, 331 NLRB 291 (2000), citing Opryland Hotel, 323 NLRB 723, 728 (1997), and Baldor Electric Co., 245 NLRB 614 (1979).

C. Prohibitions Against Electronic Communications

Policies that prohibit employees from accessing the Internet on company computer systems or that restrict the use of various email communications may violate the Act if such actions involve concerted activity for mutual aid and protection. Of course, the Board, here as in other areas of Section 7 protection, engages in a balancing of employee rights against an employer’s valid property rights. Thus, an employer’s implicit property rights, in many cases, will justify “business use only policies.”

In the case of In Re Adtranz, 331 NLRB 291 (2000), the employer’s policy provided that –

Employees may uses hardware/software and electronic corporate mail systems provided by the company for business use only. The company reserves the right to access and inspect file contents within the file storage and messaging systems to insure the systems are not being misused. Where required for business purposes, the company may access and inspect either the file storage systems or the message system and review, copy, or delete any files or messages and disclose the information in both systems to others.

In review of this policy, the Board first considered its prior decisions involving the use of company bulletin boards. “It is well established that there is no statutory right of an employee or union to use an employer’s bulletin board.” Id., citing Honeywell, Inc., 262 NLRB 1402 (1982); Container Corp., 244 NLRB 318 (1979). “An employer has a right to restrict the use of company bulletin boards. However, that right may not be exercised discriminatorily so as to restrict postings of union materials.” Id., citing J.C. Penny, Inc., 322 NLRB 238 (1996); Guardian Industries Corp., 313 NLRB 1275 (1994). Similarly, the Board has determined that there is no statutory right of an employee or a union to use an employer’s telephone for personal or non-business purposes. However, once an employer grants the privilege of occasional personal use of the telephone during work-time, it may not lawfully exclude union activities as a subject of discussion. Id., citing Union Carbide Corp., 259 NLRB 974 (1981); see also Guardian Industries Corp., 313 NLRB 1275 (1994). Considering its history, the Board in Adtranz analogously found that the employer could bar its computers and email system use consistent with the Board’s previous decisions, so long as not barred discriminatorily against Section 7 activity.

While the view expressed in Adtranz is the generally recognized position of the Board, it is not difficult to contemplate a situation in today’s electronically driven workplace environment where even if the policy is enforced in a nondiscriminatory way, if the policy has the effect of prohibiting Section 7 activity, it may still be found to violate the Act. Specifically, if the workplace is such that the only available form of employee communication is via the employer’s computer or email system, an employer’s business use only policy may restrict Section 7 solicitation to such a degree that the Board finds the policy unlawful. See Nancy J. King, Labor Law for Managers of Nonunion Employees in Traditional and Cyber Workplaces, 40 Am. Bus. L.J. 827 (2003).