CLIENT ALERT / NLRB Non-Union Concerted Activity Developments Print

INTRODUCTION.

An employee claims that they have been sexually harassed at the workplace.  Meeting what you perceive to be your obligations under Title VII, you immediately launch an investigation.  During the investigation, you tell employees involved in the investigation not to communicate with each other during the pendency of the investigation because you don’t want the results of the investigation tainted.  You want to get it right.  You have to get it right for risk-reduction purposes.  Unfortunately, this may be an unfair labor practice by preventing employees from communicating with each other during the pendency of this investigation.

The National Labor Relations Board (NLRB) has been increasingly active in addressing non-union “protected and concerted” activities related to the terms and conditions of employment, and undermining some of the assumed bedrock principles of the employer-employee relationship.  This activity has involved assessments of mandatory arbitration agreements, “at-will” employment clauses, internal investigation procedures, and social medical policies.

With the recent Presidential and national election results, it is likely that NLRB activity will increase in this area, so employers are urged to review their employee handbook, internal investigation procedures, and other protocols involving employee communications.  In addition, employers should be watchful for approval of the National Labor Relations poster, which is now enjoined by the DC Circuit Court of Appeals.  (See Taylor McCormack & Frame Alert dated April 17, 2012.)

BACKGROUND.

Under Section 7 of the National Labor Relations Act, employees have a right to “self-organize to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing” – (“union activities”).  However, Section 7 also protects the right of employees “to engage in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection” (emphasis added), also known as “protected and concerted activity”.

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce” employees in exercise of their Section 7 rights.  “Mutual aid or protection” includes communication by and between employees regarding their terms and conditions of employment – regardless of whether a union is involved.

Generally speaking, any work rule which either explicitly or implicitly “chills” Section 7 rights involves a potential unfair labor practice charge.

The use of social media (and its implication in the Section 7 rights noted above) has expanded opportunities and forums by which union and non-union employees can communicate with each other regarding their terms and conditions of employment.  See e.g. Taylor, McCormack & Frame Client Alert dated October 13, 2011.

It is with this background in mind that the NLRB has become increasingly active in protecting non-union employees’ rights to engage in protected and concerted activity regarding the terms and conditions of their employment. 

MANDATORY ARBITRATION AGREEMENT.

DR Horton 357 NLRB No. 184 (2012).  In this matter, the NLRB found that a mandatory arbitration agreement requiring employees to “refrain from bringing collective or class claims in any forum” violated Section 8(a)(1) because it interfered with employees’ Section 7 rights to engage in collective or class activity relating to their wages, hours, or other terms and conditions of employment.

24 Hour Fitness USA, Inc. NLRB Case 20-CA-035419.  On November 6, 2012, the NLRB expanded the DR Horton holding by concluding that a mandatory arbitration agreement in an employee handbook, similar to DR Horton, but which had an “opt-out” provision, allowing an employee to opt-out within 30 days, also violated Section 8(a)(1) both because it was difficult for “opt-out” employees to know which other employees had “opted-out” (and act in concert with them) as well as the fact that it arguably precluded non-opting-out employees to engage in any collective and/or class actions with employees who had opted-out. 

AT-WILL EMPLOYMENT CLAUSES IN EMPLOYEE HANDBOOKS
.

On October 31, 2012, the NLRB Office of the General Counsel issued two advice memorandums related to “at-will employment” language in employee handbooks.  These advice memos were in part related to the issuance of a decision in American Red Cross Arizona Blood Services Region NLRB Case 28-CA-23443 decided February 1, 2012 which found, in part, that the employer committed an unfair labor practice by requiring employees to sign an “agreement and acknowledgement of receipt of employee handbook” which further stated that “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way” (emphasis added).  The General Counsel of the NLRB contended, and the Administrative Law Judge agreed, that the above language was “overly-broad and discriminatory” because it had a “chilling effect” on Section 7 rights.  More specifically, the General Counsel argued that requiring employees to sign such an acknowledgement was “essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly whether represented by a union or not, to change his/her at-will status”.

ADVICE MEMOS.

The advice memo issued on October 31, 2012 distinguished American Red Cross Arizona Blood Services Region in the following two cases.

In SWH Corporation d/b/a Mimi’s Café, the following language was at issue:

At-Will Employment

"The relationship between you and Mimi’s Café is referred to as ‘employment at-will’.  This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company.  No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at-will’ relationship.  Nothing contained in this handbook creates an express or implied contract of employment." (emphasis in original)

The General Counsel indicated that, regarding the above highlighted language, absent any indication that the policy was promulgated in response to a union or other protected activity and/or that the policy had been applied to restrict protected activity, there was nothing in that provision that required employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way.  Instead, the General Counsel noted that the provision simply highlights “the employer’s policy that its own representatives are not authorized to modify an employee’s at-will status”.  Based on this, and the context of this provision in the employee handbook as a whole, which had several references to at-will employment, the General Counsel concluded that the above language would not be reasonably construed by employees such as to restrict their Section 7 rights. 

Rocha Transportation.  The language at issue in this matter was as follows:

“Employment with Rocha Transportation is employment at-will.  Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company.  Nothing in this handbook or in any document or statement shall limit the right to terminate employment at-will.  No manager, supervisor, or employee of Rocha Transport has any authority to enter in to an agreement for employment for any specified period of time or to make an agreement for employment other than at-will.  Only the President of the Company has authority to make any such agreement and then only in writing.”

Again, noting that there was no evidence that the at-will policy language was explicitly promulgated to restrict Section 7 activity, nor was there any evidence that the above language was promulgated in response to a union or other protected activity, the General Counsel concluded that the handbook provision at issue could not be reasonably interpreted to “restrict an employee’s right to engage in concerted attempts to change his or her employment at-will status”.  The provision simply precluded the employer’s own representatives from entering into employment agreements with the additional caveat that the provision explicitly permitted the employer’s President to enter into such a written employment agreement, thus envisioning a potential modification of the at-will relationship through collective bargaining and/or concerted activity.

INTERNAL INVESTIGATIONS.

On July 30, 2012, the NLRB concluded that an employer work rule asking employees subject to an internal investigation to refrain from discussing the matter while the employer conducted an investigation violated Section 8(a)(1) because “viewed in context, [the work rule] had a reasonable tendency to coerce employees and so constitute an unlawful restraint on Section 7 rights”.  Banner Health System 358 NLRB No. 93 (July 30, 2012).

Employers routinely conduct investigations into misconduct, theft, fraud, and various other topics.  In addition, the most common form of internal investigations relate to sexual harassment investigations which are performed under Title VII.  The Board indicated that to justify a prohibition on employee discussion of an ongoing investigation, “an employer must show that it has a legitimate business justification that outweighs employee’s Section 7 rights”.  The Administrative Law Judge in this matter concluded that the prohibition was justified because of the employer’s concern about protecting the “integrity of its investigations”.  The Board rejected this determination, finding that a generalized concern about protecting the integrity of an investigation is insufficient to outweigh an employee’s Section 7 rights citing a previous NLRB case addressing such issues decided in 2011.  (See Hyundai America Shipping Agency 357 NLRB No. 80 (2011)).  The Board indicated that in order to justify such a work rule, the employer has the burden “to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up”.

Employers conduct internal investigations frequently, and internal investigations conducted under Title VII involving claims of sexual harassment have potential implications far beyond the purview of the NLRB.  However, employers should, at a minimum, review their internal investigation policies with respect to the legitimate business justification of prohibiting affected employees from communicating with each other during an investigation which could include, but is not necessarily limited to the criteria articulated by the Board in Banner Health System.  While protecting the integrity of the investigation alone is not enough, at least according to the NLRB, their concern in conjunction with additional criteria may be enough to reach the “legitimate business justification” threshold.  In addition, the type of investigation (e.g. Title VII investigations) may be a “legitimate business justification” due to the liability issues created by Title VII. 

MISCELLANEOUS.

Employer work rules that specifically preclude employees from speaking with one another.  The NLRB will conclude that any work rule that precludes or “chills” an employee from speaking with another employee involving Section 7 activity violates Section 8(a)(1) of the National Labor Relations Act.  Thus, employer restrictions in employee handbooks that preclude employees from discussing their salary, wages, or other topics involving the terms and conditions of their employment will be found unlawful.   

As always, feel free to contact any of the attorneys

at TMF to discuss this or any other legal matter.

 

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