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Summer Homework: Rewrite Policies

By Allen Smith  6/26/2012

ATLANTA—"She just trashed all my handbook’s policies,” said one attendee of a June 25 session of the SHRM 2012 Annual Conference to another after Lynn Outwater, SPHR, an attorney with Jackson Lewis in Pittsburgh, finished her presentation on the ramifications of National Labor Relations Board (NLRB) changes.

“If I were all of you, I wouldn’t go to sleep this summer,” Outwater said, noting that there are too many developments at the NLRB to ignore.

She highlighted four developments: an Aug. 26, 2011, NLRB opinion (Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83) that drastically reduced the size of bargaining units; new opinions by the NLRB redefining who is a supervisor under the National Labor Relations Act (NLRA); an expanding definition of “concerted activity”; and a May 30, 2012, NLRB report on social media policies that she said has changed the world.

Micro-Units and Supervisors

The Specialty Healthcare decision gave the green light to bargaining units as small as two people, and, Outwater said, she already has encountered a bargaining unit of two people.

“If a union thinks your facility has one job that is vulnerable to unionization—and most companies do—the unions can target one job,” she noted.

“This is dramatic,” she said, adding that attendees should not squander their summer work hours but instead should identify whether they have jobs that are vulnerable to organizing.

That includes identifying whether there are any “bull in the china shop” managers who don’t listen, don’t care and don’t talk to employees; who are always cranky; or who change their minds constantly. 

In addition, the labor board has issued a series of decisions that make it more difficult to prove someone is a supervisor under the NLRA.

“Another homework assignment is to find out who truly are supervisors and whether you want them to be,” she remarked. “If you guess wrong and they are in the bargaining unit, it’s a nightmare.”

‘Liar’

There are a plethora of labor relations changes through rulemaking, board decisions and through regional directors enforcing the law, according to Outwater. She noted that one regional director described to a partner at her firm how happy the director was about the new decisions that expand the definition of what’s concerted activity.

Think you know what’s concerted activity? Think again; it’s far from intuitive.

Consider the following example of concerted activity: A boss sent an e-mail describing a new vacation policy and asked employees if they agreed it was good. One employee replied to all to say that “no, it was not good, it was awful” and calling the boss “a liar.” Furious, the boss fired him.

But in this circumstance, the law required permitting calling the president a liar.

NLRB Report

The most recent news from the NLRB is a far-reaching report on social media policies that has implications for all of an organization’s policies.

Remember, Outwater noted, the NLRA applies to nonunion employees.

How much of employee handbooks will most employers have to rewrite because of the report? “A lot,” Outwater remarked.

Words matter, and policies must be crafted with great precision, she said, adding that employers should avoid such vague words and phrases as “interferes with the company’s best interests,” “interferes with the company’s goals and objectives,” “improper,” “abusive,” “injurious,” “unseemly,” “false,” “disloyal,” “disruptive,” “damaging,” “competitive,” “insulting,” “derogatory,” “detrimental,” “intimidating,” “disparaging” and “intemperate.”

“Go home and fix your handbooks,” she concluded.

Allen Smith, J.D., is manager, workplace law content, for SHRM.

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