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HR Magazine, March 2004 - Legal Trends: Labor Pains for Union-Free Employers

By Jonathan A. Segal  3/1/2004

HR Magazine, March 2004

Vol 49, No 3

Don't be caught unaware of nonunion employees' labor law rights.

In 1975, the Supreme Court ruled that union employees had the right to request that a co-worker attend any investigatory meeting that could reasonably lead to discipline. But in 2000, the National Labor Relations Board (NLRB) extended these rights—known as Weingarten rights, in honor of the case in which they were established—to nonunion employees as well.

While the NLRB has flip-flopped its position on Weingarten rights over the years, the fact that nonunion employees are entitled to some of the same rights as their union brethren is well established. In fact, section 7 of the National Labor Relations Act (NLRA) grants all covered employees—including nonunion employees—the right to engage in activity for their “mutual aid or protection.”

In other words, nonunion employees have a right to engage in “protected concerted activity.” There will be no NLRB flip-flopping on that bedrock principle.

Some of the NLRB’s interpretations regarding protections for nonunion workers are problematic for employers because they grant these rights rather broadly. And because these rights are granted under the NLRA—a law that HR professionals working in nonunion environments may be relatively unfamiliar with—they may come as a surprise to many employers that operate without unions.

To avoid unwittingly following policies and practices that run afoul of the NLRA, let’s review seven of the most notable section 7 rights enjoyed by union and nonunion employees alike. (Not exactly absolution for seven deadly sins, but sometimes it feels that way!)

Discuss Employment Terms

The NLRA’s primary purpose is to protect employees’ right to act collectively—in other words, to organize. For employees to organize, the board has held that they must be able to—and therefore have the right to—discuss the terms and conditions of their employment among themselves. This includes, for example, the right to talk about what they are paid.

Accordingly, employers cannot prohibit employees from discussing their wages. A rule prohibiting discussions about pay is unlawful, even if the employer does not strictly enforce it. The NLRB believes that the mere existence of such a rule would have a chilling effect on the exercise of section 7 rights.

Employees’ right to discuss their working conditions is not limited to sharing salary information. They also are free to discuss employer harassment and discrimination, for example. An absolute gag order issued during an investigation of alleged harassment most probably runs afoul of the NLRA.

For example, in Phoenix Transit System, a 2002 NLRB case, the employer committed an unfair labor practice by maintaining a confidentiality rule that prohibited employees from discussing their sexual harassment complaints among themselves. (Although this case involved unionized employees, its analysis is applicable to nonunion employees.)

Not surprisingly, concerted activity is not limited to oral and written communications but also includes electronic communications. In 1997, the NLRB held in Timekeeping Systems Inc. that a mass e-mail to all employees criticizing the employer’s vacation policy constituted protected concerted activity.

Discussions regarding terms and conditions of employment are presumed to be protected, and the employer has the burden of showing that the protections don’t apply in a specific situation.

Still, employees’ right to talk among themselves about their working conditions is not absolute. For example, employees who have access to confidential information about other employees’ salaries can be restricted from disclosing it.

Moreover, employers have the right to maintain order in the workplace. Accordingly, the board held in United Cable Television Corp. that communications that are “flagrant, violent or extreme” are not protected. An administrative law judge—the official who hears a case before it is appealed to the full board—found in DaimlerChrysler Corp. that employee speech is unprotected if it includes profanity that is “flagrant” and “egregious.”

Bad-Mouth Employer

In light of the NLRA’s purpose, it is not surprising that the statute protects employees’ conversations that may be preliminary to union organizing activity. But what about employees’ conversations with non-employees? Do employees have a protected right to complain to customers or clients about the terms and conditions of their employment? How about the media?

The answer is a qualified “yes.” In a number of cases, the NLRB has found that protected concerted activity exists with regard to conversations between employees and third parties. In 1987, for example, the board found in Greenwood Trucking Inc. that employees have a right to discuss their concerns about employment conditions with customers.

Similarly, in Allstate Insurance Co., a 2000 decision, the NLRB held unlawful an employer’s disciplinary warning of an employee for talking with Fortune magazine about concerns regarding an Allstate employment program that affected her and similarly situated employees.

In late 2003, the 6th U.S. Circuit Court of Appeals, in Bowling Transportation Inc. v. NLRB, upheld the NLRB’s finding that an employer violated the NLRA when it fired two employees who had complained to a client about the employer’s pay practices.

That the employer discharged the employees in response to the client’s demand to remove the employees from the client’s premises was of no avail. The court reasoned that the employees would not have been discharged in the absence of their concerted activity, so the employer was not allowed to hide behind the customer’s demand.

The lesson of these cases is that rules and policies that absolutely prohibit employees from talking with customers, the media or other third parties about their working conditions may very well run afoul of the NLRA. The same is true of a procedure that requires employees to report work-related complaints to the employer and punishes them for failing to abide by the procedure. The NLRB so held in the 1990 case of Kinder-Care Learning Center Inc.

Should the employer roll over and play dead when it comes to employee communications with third parties? Definitely not. An employer generally has the right to prohibit the disclosure of its confidential and proprietary information. (However, a rule prohibiting the disclosure of the identity of all employees may be unlawfully overbroad as the board found in University Medical Center in 2001.)

An employer, obviously, has the right to establish a complaint procedure for employees to express concerns about the terms and conditions of their employment. The employer cannot punish or threaten to punish employees who engage in protected concerted activity rather than using the procedure.

Engage In Work Stoppages

When we think about concerted activity, the first things that come to mind for many of us are strikes and other work stoppages. What might not be so obvious is that nonunion employees have the same right to withhold their labor as unionized employees.

Specifically, an employer violates the NLRA if it discharges or otherwise disciplines a nonunion employee for organizing or implementing a collective walkout to protest working conditions. (See NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).)

Even a solo walkout may be protected, if the individual is engaged in concerted activity. Generally speaking, to be concerted activity, “[i]t is sufficient that the employee intends or contemplates, as an end result, group activity which will also benefit some other employees. …‘Talk looking toward group action is protected’; mere griping is not,” the 8th U.S. Circuit Court of Appeals held last year in JCR Hotel Inc. v. NLRB.

Ironically, employees’ right to walk out is often greater in a nonunion setting than in a unionized environment. That’s because, under most union contracts, the union waives its members’ right to strike by means of a collectively bargained no-strike clause. No comparable waiver exists in nonunion settings.

Therefore, a nonunion employer’s rule that prohibits work stoppages or other work disruptions runs afoul of the NLRA. For example, in Labor Ready Inc., the NLRB several years ago found that a nonunion employer’s rule stating that “employees who walk off the job will be discharged” was overbroad and unlawful. More recently, the board’s administrative law judge in Northern District Inc., struck down a rule that prohibited “causing, creating or participating in disruptions of any kind during working hours on company premises.”

Just as with striking union workers, you can temporarily or permanently replace nonunion workers who walk off the job. However, if the strikers return to work before you hire replacements, you must give the workers their jobs back. Moreover, even if you replace the striking workers, you ordinarily must consider them for reinstatement when positions for which they are qualified become available.

However, not all work stoppages are protected. For example, partial strikes, such as work slowdowns, in which employees continue working on their own terms, generally are not protected, and the employer is free to discipline. (Vencare Ancillary Services Inc. v. NLRB, No. 01-2165, 2003 U.S. App. LEXIS 24883 (6th Cir. 2003).)

Honor Picket Lines

Union and nonunion employees alike have a statutory right not only to engage in work stoppages but also to honor picket lines set up by other employees. To quote the NLRB: “An employee who honors a lawful picket line is engaged in protected activity without regard to whether or not he [or she] is a member of the picketing labor organization or is merely sympathetic to the objectives of the picket line.” (Bristol Convalescent Home Inc., 293 N.L.R.B. 625 (1989).)

The determining factor is not whether the employee honoring the picket line is represented by a union but rather whether the picket line itself is lawful. An employee cannot be disciplined or discharged for honoring a lawful picket.

Of course, it is not always obvious to an observer whether a picket line is lawful or not. And if the picketed employer files an unfair labor practice charge challenging the lawfulness of the picket line, it could be years before the NLRB and the courts rule on it. So, employers need to be cautious in their response to employees who honor picket lines.

Just as with other work stoppages, however, an employer can temporarily or permanently replace employees who refuse to cross a picket line, subject to the limitations set forth above.

If you work in an industry where employees commonly encounter picket lines, avoid the temptation to ask job applicants whether they would cross one. An employer cannot refuse to hire applicants for fear that they will engage in protected activity, so inquiries of that nature are per se unlawful.

Solicit and Distribute

Imagine going into your neighbors’ home and distributing literature to their guests. Worse yet, imagine suing your neighbors when they tell you to stop.

Well, that’s exactly what employees have a right to do when they are in your workplace as at-will guests. The NLRB has held that employers can restrict but cannot prohibit employee solicitations and distributions. While a general ban on employee solicitations or distributions will be overbroad and unlawful, the Supreme Court set forth some limitations on employee rights in the 1945 landmark case of Republic Aviation Corp. v. NLRB.

Generally, employees can be restricted to:

  • Soliciting during the non-working time of all employees involved.

  • Distributing in non-working areas during the non-working time of all involved.

An employer’s use of the term “working time” vs. “working hours” in a solicitation and distribution rule is crucial. The NLRB has held, for example in the 2000 case of Midon Restaurant Corp., that use of the term “working hours” is presumed to be invalid because it implies all time in which anyone is working, including breaks in which particular employees are not working.

Stricter prohibitions are permitted in certain industries. For example, in 1976, the NLRB held in St. John’s Hospital that health care employers can restrict solicitation and distribution to non-working, non-patient care areas during the non-working time of all involved.

Even if an employer has a lawful solicitation/distribution policy, it cannot apply it selectively. Most significantly, if the employer makes exceptions for charitable causes, the employer generally cannot strictly apply the policy to union causes. (Riesbeck Food Markets Inc., 315 N.L.R.B. 940 (1994). That rule currently is subject to a narrow exception only for the United Way. (Hammery Mfg. Corp., 265 N.L.R.B. 57 (1980).)

Access Company Property

I don’t know about you, but after a long day, there is nothing I enjoy more than hanging around the workplace! Seriously, though, if employees wish to do so, the law protects them, to some degree.

An employer cannot impose an absolute no-access rule on off-duty employees. As the NLRB held in Automotive Plastic Technicians Inc., such a rule is valid only if it:

  • Limits access solely with respect to the interior of the plant and other working areas.

  • Is clearly disseminated to all employees.

  • Applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity.

Moreover, except where justified by business reasons, a rule that denies off-duty employees entry to parking lots, gates and other outside non-working areas will be found invalid.

As with solicitation and distribution rules, no-access rules must be enforced consistently. In other words, if you allow off duty employees into the interior of the plant for charitable purposes, you probably have to do the same for Teamster purposes.

Be Abusive

This is my personal favorite: The NLRA has been interpreted to give employees a limited right to verbally abuse their supervisors.

In 1966, in Linn v. United Plant Guards, the Supreme Court held generally that campaign propaganda preceding a union election does not lose its statutory protection simply because it includes “intemperate, abusive and inaccurate statements.” Since then, the board has struck down employer rules prohibiting abusive or threatening language as unlawful inhibitions on protected employee speech.

For example, in Flamingo v. Hilton-Lauglin, the board in 1999 struck down a rule prohibiting the use of “loud, abusive or foul language.” It reasoned that such a rule reasonably could be interpreted as barring protected union organizing propaganda.

This line of cases was too much for one appellate court. In Adtranz ABB Daimler v. NLRB, the District of Columbia U.S. Circuit Court of Appeals reversed the NLRB’s holding unlawful a rule prohibiting the use of “abusive or threatening language to anyone on company premises.” The court rejected the rationale that such a rule has the unrealized potential to chill protected activity.

To the contrary, the court stated: “[I]t is preposterous that employees are incapable of organizing a union or exercising their statutory rights under the NLRA without resort to abusive or threatening language.”

The court continued: “We do not share the union’s low opinion of the working people it purports to represent. America’s working men and women are as capable of discussing labor matters in intelligent and generally acceptable language as those lawyers and government lawyers who now condescend to them.”

Notwithstanding the ruling in Adtranz, the NLRB, or at least some administrative law judges, continue to scrutinize closely employer prohibitions in this area. This does not mean that an employer must tolerate profanity. As noted previously, extreme profanity is not protected. It means that the NLRB will examine closely any rule dealing with profanity to make sure it is not drafted so broadly that it covers all profanity, some of which may be protected.

The point is not that employers should abandon their rules prohibiting abusive and/or threatening language. The point is that employers need to be careful when applying them and to be prepared to appeal any adverse decision by the NLRB to a more reasonable appellate court.

Author’s note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Jonathan A. Segal, Esq., a contributing editor of HR Magazine, is a partner in Philadelphia in the Employment Services Group of Wolf, Block, Schorr and Solis-Cohen LLP. His practice concentrates on counseling clients, developing policies and strategic plans, and training managers to avoid litigation and unionization.

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