The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

Are Your Client’s Employment Policies Lawful? What We Can Expect from the Current National Labor Relations Board
by Phillip M. Schreiber and Kenneth A. Jenero

Nearly all private sector employers in the United States are covered by the National Labor Relations Act (“Act”).[1] The Act protects all nonsupervisory employees, whether or not they are unionized. Section 7 of the Act[2] forms the cornerstone of employee rights under the Act. It guarantees nonsupervisory employees the right “to form, join, or assist labor organizations, . . . [and] to engage in other concerted activities for the purpose of . . . mutual aid or protection.” [3] Section 7 protected activities include, for example, soliciting support for a union, discussing terms and conditions of employment or union organizing with co-workers, joining with co-workers to raise work-related complaints with their employer or governmental agency, and seeking help from a union. Section 8 of the Act [4] makes it an unfair labor practice for any employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”

The Act is enforced by the National Labor Relations Board (“NLRB” or “Board”). The NLRB is comprised of five members; traditionally three members are of the President’s party. When President George W. Bush was in office, the NLRB, consisting of three Republican members, issued numerous pro-employer decisions to which the two Democratic members objected. One of those two Democratic members, Wilma Liebman, is now the Board Chairman, and President Obama has appointed two additional Democrats and one Republican to fill the vacancies. The Democratic members are Craig Becker and Mark Pearce, both of whom (like Chairman Liebman) were long-time union lawyers.[5]

Employers can reasonably expect significant changes under the new Board. Many “Bush-era” decisions will likely be overruled, particularly those in which the Democratic Board members dissented or which organized labor has criticized. The new decisions undoubtedly will be much more favorable to unions and employees. This is clear not only from the content and tenor of Chairman Liebman's dissenting opinions, but also from several decisions that already have been handed down by the new Board. Several key decisions are likely candidates to be changed by the newly constituted Board.

Use of an Employer’s Email System. In The Register Guard[6], the Board majority held that employees have no statutory right to use their employer’s e-mail and computer-based systems for Section 7 purposes, such as union solicitations. The majority specifically rejected existing Board precedent pursuant to which an employer could not validly prohibit employee use of communications equipment for Section 7 purposes if it allowed employees to use such equipment for any non-work-related purposes. Rather, according to the Register Guard majority, for discrimination to be unlawful, it must be along Section 7 lines. Unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. Therefore, an employer lawfully may draw a line between (1) charitable solicitations and non-charitable solicitations, (2) solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), (3) invitations of a personal nature and invitations for an organization, (4) solicitations and mere talk, and (5) business-related use and non-business-related use. In each of these examples, the fact that union solicitation would be prohibited does not establish that the rule discriminates along Section 7 lines.

Member Liebman dissented “in the strongest possible terms.” In her view, “[w]here... an employer has given employees access to e-mail for regular, routine use in their work,... banning all non-work-related ‘solicitations’ is presumptively unlawful absent special circumstances.” In other words, employees who are given access to their employer’s e-mail system for business purposes generally must be permitted to use the system for Section 7 related activity, including union organizing. If The Register Guard  decision is reversed and Liebman's view is adopted, employers no longer will be able to lawfully implement policies that permit a variety of personal uses of their e-mail and other computer-based systems, and yet prohibit use of the systems to engage in union and other Section 7-protected communications.  Indeed, employers likely will be required to permit employees to use their computer systems for Section 7 purposes even if all other non-business related communications are prohibited.

Employee Representation During an Investigatory InterviewIBM Corp.[7] dealt with the application of what are referred to as “Weingarten rights” to non-union employees.[8] Under the Board's Weingarten decision, union-represented employees have the right, upon request, to the presence of a union representative during an investigatory interview that reasonably could result in disciplinary action against the employee. The NLRB had addressed the question of whether non-union employees were entitled to Weingarten rights in several cases prior to IBM Corp.  The most recent decision was Epilepsy Foundation,[9] where the Board held that Weingarten rights did extend to non-union employees.
The majority in IBM Corp. overruled Epilepsy Foundation, and held that non-union employees do not have any Weingarten rights. In reaching its holding, the IBM Corp. majority reasoned that non-union co-workers do not represent the interests of the entire work force. In contrast, a union representative who, while accompanying a bargaining unit employee to an investigatory interview, represents and safeguards the interests of the entire unit. Moreover, non-union co-workers cannot redress the imbalance of power between employers and employees as would the presence of a union representative at a meeting with an employer.

In dissent, Member Liebman observed, “Today, American workers without unions, the overwhelming majority of employees, are stripped of a right integral to workplace democracy. . . . It is hard to imagine an act more basic to ‘mutual aid or protection’ than turning to a co-worker for help when faced with an interview that might end up with the employee fired.” If IBM Corp. is overruled, non-union employers may conceivably be required to allow employees to be accompanied by a co-worker - or possibly even an outside representative such as an attorney or union organizer - at any meeting or interview that the employee reasonably believes may result in some form of disciplinary action.

Employer Work Rules. Prior Boards have established a line of cases to test whether an employer’s work rules impermissibly interfere with employee Section 7 rights.[10] Over the years, employees have challenged a wide range of work rules (e.g., prohibiting such things as profane language, disloyal or disruptive behavior, and threatening or intimidating conduct) as unlawful because of their asserted tendency to chill employees in the exercise of activities protected by Section 7.  Under the existing case law, the Board gives the work rule at issue a “reasonable reading” in context. The Board does not consider the rule in isolation or start with the presumption that the rule improperly interferes with an employee’s Section 7 rights. In conducting its “reasonable reading” of a work rule, the Board considers the following factors: Does the rule, on its face, restrict Section 7 activity? Would a reasonable employee read the rule as interfering with Section 7 rights? Is there evidence that the rule was applied to restrict Section 7 activity? Is there evidence that the rule was promulgated in response to union activity?

For example, in Martin Luther Memorial Home, Inc.,[11] the Board majority found that an employer’s rule prohibiting “abusive and profane” language was lawful under the Act. The majority based its decision on the fact that (1) the rule did not, on its face, restrict Section 7 activity; (2) the rule could not be read by a reasonable employee to interfere with Section 7 activity; (3) there was no evidence that the rule had been applied to restrict Section 7 activity; and (4) there was no evidence that the rule was promulgated in response to union activity. In her dissenting opinion, Member Liebman stated that she would have found the rule to be unlawful because employees could feel they were restricted in communicating about terms and conditions of employment.

In Tradesmen International,[12] the Board majority held that an employer’s rules prohibiting disloyal, disruptive, competitive or damaging conduct; prohibiting slanderous or detrimental statements; and requiring employees to represent the employer in a positive manner, were lawful. The Board found that these rules served legitimate business interests and reasonable employees would not construe them as intended to proscribe Section 7 activity. Member Liebman, in dissent, would have held that the challenged rules violated the Act because they had a reasonable tendency to chill employees' exercise of their Section 7 rights.

The rule at issue in Palms Hotel & Casino[13] prohibited employees from engaging in “conduct which is or has the effect of being injurious, offensive, threatening, intimidating, or interfering with” other employees or patrons. The Board majority held that this rule was lawful because it was not promulgated in response to union organizing and did not specifically address Section 7 activities. In her dissent, Member Liebman rejected the “reasonable reading” standard and explained that she would have held that the challenged work rule violated the Act because the prohibition against conduct that has the effect of being offensive or interfering with other employees, could be read by employees to include unwanted or persistent union solicitation, which is protected activity.

Member Lieman’s dissents in the work rule cases suggest that, with a change in composition of the Board, that Board may find violations of the Act with respect to rules which would have passed muster under the previous Board. Employers are well-advised to carefully review their work rules to determine whether they include any overly broad statements, and rewrite them to satisfy the more restrictive standards likely to be endorsed by the new Board.  Employers also may also consider adding notices to work rules acknowledging employees’ rights to engage in Section 7 activity and specifically exempting such activity from the scope of the rules. [14]

Expansion of Activity Protected By the Act.  In Holling Press, Inc.,[15]  the Board considered whether an employee was engaged in activity protected by Section 7 of the Act when she solicited a co-worker to be a witness in support of her sexual harassment claim filed with a state agency. A majority of the Board held that the employee’s actions were not subject to the protections of the Act. According to the majority, although the employee’s conduct was concerted, it also was uniquely designed to advance her own cause, and thus, was not engaged in for purposes of mutual aid and protection.[16]

herefore, the employee’s actions fell outside of the purview of Section 7 of the Act.

In her dissent, Member Liebman stated that she would have found the employee’s conduct to be protected by Section 7. Member Liebman reasoned that efforts to invoke the protection of statutes benefiting employees (such as equal employment and anti-harassment laws) are necessarily for the purpose of mutual aid and protection. Thus, in Member Liebman’s view, an employee’s solicitation of assistance from co-workers in support of a statutory claim, even if individual in nature, is protected concerted activity under Section 7.

In Waters of Orchard Park,[17] the Board considered whether nursing home employees were engaged in protected activity under the NLRA when they called the New York State Department of Public Health to report excessive heat in the employer’s nursing home. In finding the conduct to be outside the scope of Section 7, the Board majority reasoned that the employees’ call to the State did not involve a term or condition of their employment or any of their co-workers.  Instead, they called to express their concern about the patients. Member Liebman dissented based on her view that the employees’ expressed concerns over patient care necessarily involved their working conditions.

Member Liebman’s dissents suggest that the new Board will take a more expansive view of what constitutes protected employee conduct under Section 7 of the Act. For example, it is entirely possible that most or all individual complaints to governmental enforcement agencies will be protected, even if the employee was acting alone and out of purely selfish motives. As such, the NLRA may be transformed into an anti-retaliation statute of much broader application.  An expanded definition of protected Section 7 activity may lead to more unfair labor practice charges against employers.
Notably, the Board recently issued a decision significantly expanding the scope of the Act’s protections. In Parexel International, LLC, [18] a majority of the Board found that the employer violated the Act when it discharged an employee to prevent her from engaging in protected concerted activity. In other words, the Board found that the employer unlawfully interfered with the employee’s Section 7 rights even though the employee had not yet engaged in any statutorily protected conduct.  This is an unprecedented interpretation of Section 7's scope and portends a  likely trend in the expansion of the Act’s protections under the new Board.

Union Buttons and Paraphernalia. In W San Diego,[19] the Board considered whether the employer violated the Act when it prohibited an employee from wearing a union button in public areas of its hotel. The Board majority found no violation. In their view, although employees have a statutorily protected right to wear union insignia, the employer’s prohibition against wearing a union button in areas where the employees interacted with the public was justified by “special circumstances.”[20] Specifically, the union button would have interfered with the employer’s use of a particular uniform for in-room delivery servers designed to create a unique atmosphere and ambiance for hotel guests.
Member Liebman disagreed with the majority’s conclusion that the employer had established special circumstances warranting the ban on union buttons in public areas. According to Member Liebman, customer exposure to union insignia, standing alone, does not constitute “special circumstances” simply because of concerns about creating controversy. Furthermore, wearing a union button that contains no offensive messages or language does not in any meaningful way interfere with an employer’s effort to create an image of neatly uniformed employees.

Under the new Board, there will likely be an increased burden on employers to establish “special circumstances” which would enable them to prohibit employees from wearing union insignia. In particular, the Board is less likely to accept a business image rationale. Rather, the Board likely will require the employer to prove that wearing the challenged insignia would significantly or meaningfully detract from the employer’s ability to achieve its legitimate business objectives

Bannering.  In 2010, in Eliason & Knuth of Arizona, Inc.,[21] the new Board ruled on an important matter of first impression: whether a union violates the Act when, at a secondary employer’s business,[22] its agents display a large stationary banner announcing a “labor dispute” and seeking to elicit “shame on” the employer or persuade customers not to patronize the employer. The  majority of the new Board held that the union did not violate the Act because its display of the banner was not “intimidation or persuasion.” According to the Board, the union peaceably displayed the banners bearing a message directed to the public; the banners were held stationary on a public sidewalk or right-of-way; no one patrolled or carried picket signs; and no one interfered with persons seeking to enter or exit from any workplace.  While the practice of “bannering” stops short of picketing - which the Board has regularly held to be unlawful secondary activity - this ruling by the new Board nonetheless clears the way for unions to apply pressure to primary employers by directly influencing the employers' relationships with secondary employers.

Conclusion. Employers already have been subjected to significant changes in the NLRB’s interpretation of the NLRA under the new Board appointed by President Obama, and they can expect to see many more changes that will continue to greatly expand employee and union rights. Ultimately, these changes will result in more unfair labor practices charges being filed against employers and increased employer liability. To counter this, employers should carefully examine their employment policies, including their wording and scope of application.  Revisions may well be in order.

[1] 29 U.S.C. §§ 151-169.
[2] 29 U.S.C. § 157.
[3] An employee’s section 7 rights are often characterized as the right to engage in "protected concerted activity."
[4] 29 U.S.C. § 158(a)(1).
[5] Craig Becker has served as Associate General Counsel of the AFL-CIO and the SEIU. Prior to his appointment to the NRLB, Member Becker advanced several strong pro-union positions in areas under the purview of the Board (e.g., employers should have no role in union organizing campaigns and union representation elections; employers should have no right to object to union campaign conduct; and the usual remedy for unfair labor practices should be an order to recognize the union and bargain).
[6] The Register Guard, 351 NLRB 1110 (2007).
[7] IBM Corp, 341 NLRB 1288 (2004).
[8] See also NLRB v. J. Weingarten, Inc., 420 U.S. 251, 257 (1975) (basing right on sections 7 and 8(a)(1)).
[9] Epilepsy Foundation, 331 NLRB 676 (2000).
[10] Lafayette Park Hotel, 326 NLRB 824 (1998); Tradesmen International, 338 NLRB 460 (2002); Lutheran Heritage Village, 343 NLRB 646 (2004); Palms Hotel & Casino, 344 NLRB 351(2005); and Guardsmark, LLC, 344 NLRB 809 (2005).
[11] Martin Luther Memorial Home, Inc., 343 NLRB 646 (2004).
[12] Tradesmen International, 338 NLRB 460 (2002).
[13] Palms Hotel & Casino, 344 NLRB 351(2005).
[14]In some of Member Liebman's dissents in the work rule cases, she suggested that employers with suspect rules could come within the bounds of the Act by including a disclaimer that the rule’s prohibitions do not apply to conduct protected by the Act. See e.g., Lutheran Heritage Village, 343 NLRB 646 (2004).
[15] Holling Press, Inc., 343 NLRB 301 (2004).
[16]In particular, the Board found that the employee’s complaint was individual in nature, not for the benefit of a group; the purpose in asking a co-worker to help her was to advance her own cause, not a collective goal; and there was no evidence that other employees had similar problems, real or perceived.
[17] Waters of Orchard Park, 341 NLRB 642 (2004).
[18] Parexel International, LLC, 356 NLRB No. 82 (2011).
[19] W San Diego, 348 NLRB 372 (2006).
[20]An employee’s right to wear union buttons and insignia may be overcome by “special circumstances.”
[21] 355 NLRB No. 159.
[22]A secondary employer is an employer that does business with another employer (the primary employer) which has a dispute with a union.
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