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.