Nonunion employers can’t ignore Obama’s NLRB

Most nonunion employers understandably pay relatively little attention to the National Labor Relations Board’s decisions and regulations. The NLRB administers the National Labor Relations Act and most often decides cases involving attempts to form a union or conduct of an employer dealing with its employees’ union.
The current board, however, comprised of a majority of President Obama appointed, labor-friendly members, has impacted the nonunion workplace through recent decisions, and attempted to alter life for nonunion employers through rule-making attempts (i.e., proposed regulation), to an unprecedented extent.
So far, litigation has thwarted the rule-making foray but the decisions have already affected nonunion employers in important ways. Especially now that the 2012 election has guaranteed the continuation of an “Obama board,” nonunion employers must pay attention to this increasingly relevant and emerging body of law.
Under state and federal laws, including but not limited to laws prohibiting sexual harassment and other forms of discrimination, employers must conduct investigations when aware of allegedly unlawful employee behavior. Many employers routinely advise the complaining party to maintain confidentiality during the investigation and communicate that advice in writing. Such practices would seem both prudent and free from National Labor Relations Act risk. But the board has declared such confidentiality admonitions unlawful unless the employer can establish under the specific circumstances a “legitimate business justification” for confidentiality.
Human resources personnel must create written explanations, for inclusion in the investigation file, of the basis for concluding that harm will result unless the complaining party maintains confidentiality. Such documents, if thoughtfully prepared with consideration of the specific circumstances and the board’s criteria, should effectively reduce the risk of an unfair labor-practice finding. Other common employment policies and practices in the nonunion workplace face increasingly strict scrutiny from the Obama board. The board will find a violation of the NLRA (i.e., an “unfair labor practice”) when a policy explicitly prohibits rights guaranteed by the NLRA. For example, a rule prohibiting the discussion of unions during employee break time. But even a policy with no explicitly unlawful restrictions violates the NLRA if the employee would reasonably interpret the conduct to disallow what the NLRA protects.
The board construes ambiguous employer policies against the employer and will find a violation even if an over-broad policy has not yet been applied to prevent protected conduct.
Confidentiality policies seek to protect an employer’s business information from dissemination. The board, however, has for years struck down such policies as tending to chill employees’ protected conduct if the policies imply that employees cannot talk to each other about their wages and benefits. Recently, the board found an unfair labor practice where the employer’s required confidential-information agreement banned employees from sharing “personnel information and documents outside the organization.”
The board’s approach to employer policies constraining employee speech on social media leaves employers understandably uncertain about the permissible parameters. Policies which broadly require employee courtesy toward other employees or supervisors or respect toward the employer’s management, or which ban damaging statements about the business violate the NLRA according to the Obama board. The board believes that such circumscription discourages what the NLRA encourages: “concerted activity” (i.e., two or more employees acting together) such as posting about wages or working conditions or collective, online efforts to affect them. Even the apparently safe haven of employment-at-will acknowledgements now appears to be somewhat treacherous ground. In one case, an administrative-law judge ruled that an employment-at-will agreement violated the NLRA by requiring, in essence, a waiver of the employee’s right to engage in concerted activity designed to achieve a different status. Recent indications from the board’s own lawyers suggest that most employment-at-will acknowledgements may survive attack.
The board may ultimately strike down only those at-will provisions which state, or reasonably imply, that the employee has as a condition of employment relinquished the right to change his or her at-will status. This approach, if applied by the board in decisions, would leave employers free to use most employment-at-will statements and employee-handbook contract disclaimers.
Assuming the employer’s rule or policy does violate the NLRA, the employer must convince the board that the same action would have been taken even without the impermissible rule or policy. If that fails, the board will find an unfair labor practice and impose remedies. The remedies include posting in the workplace a notice about the employer’s obligation to cease and desist from such the violation or violations found, and, in discharge cases, reinstating with back pay the terminated employee.
An employer’s defense must be proactive; updating policies, forms and practices to conform to the Obama board’s rules. •


Andrew B. Prescott is a partner in the Providence office of Nixon Peabody LLP and focuses his practice on the representation of private- and public-sector employers in diverse labor, wage-and-hour and discrimination matters.

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