NLRB Report Concerning Employer Rules
We get a lot of questions from employers wondering what type of activities are covered under the National Labor Relations Act. Here is a very good brief summary from XpertHr.com.
The National Labor Relations Board (NLRB) Office of the General Counsel released a report on March 18, 2015 providing guidance to union and non-union employers on workplace rules and employee handbooks. The report attempts to provide clarity on recent NLRB decisions addressing whether certain rules would be reasonably construed to prohibit or restrict employees from engaging in concerted activities protected under Section 7 of the NLRA, such as discussions of terms and conditions of employment and union organizing.
In doing so, the report provides lawful and unlawful examples of the following rules and policies frequently at issue:
- Confidentiality rules;
- Employee conduct/professionalism rules;
- Third party/media communications rules;
- Logos, copyrights and trademark rules;
- Photography and recording rules;
- Rules restricting employees from leaving work; and
- Conflict of interest rules.
The NLRB reminds employers that the mere maintenance of a work rule may violate the NLRA if it has a “chilling” effect on an employee’s protected activity.
Summary of NLRA’s Other Employee Protections
Section 8(a) of the NLRA sets out several other important employee protections that prohibit:
- Discrimination by an employer with regard to “hire, tenure, or any term or condition of employment” in order to “discourage” union activity – Section 8(a)(3);
- Termination or discrimination for filing charges or giving testimony under the Act (i.e., retaliation) – Section 8(a)(4);
- Bad-faith bargaining by the employer – Section 8(a)(5); and
- An employer dominated or company union – Section 8(a)(2).
These employee rights were originally written to prevent employers from manipulating the process to establish a union that would always be friendly to and under the control of management – a problem that occurred all too frequently prior to the passage of the NLRA. More recently the proviso has been applied to company teams and employee involvement committees controlled by management and bestowed with the authority to address their own wages, benefits or terms and conditions of work. As a practical matter, to avoid violations of Section 8(a)(2) in a nonunion environment, it is best for an employer to form company “focus” groups with employees who do not meet on a repeated basis to address their wages, benefits or working conditions. In a unionized setting, the formation and role of employee committees should be bargained for and agreed on with the union.
Summary of NLRA’s Employer Protections
The NLRA also sets out important protections for employers against certain activities by unions:
- Bad-faith bargaining – Section 8(b)(3);
- Secondary boycotts – Section 8(b)(4);
- “Featherbedding” demands to pay employees for services not performed – Section 8(b)(6);
- Certain kinds of picketing for union recognition – Section 8(b)(7); and
- “Hot cargo” agreements – Section 8(e).