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Even Non-Union Employees Have Rights Under the NLRA

By Andrew M. Slobodien
April 28, 2008

If your company has no union, there is no need to worry about the National Labor Relations Act (NLRA). Right? Think again. More and more charges are being filed and successfully litigated on behalf of non-union employees under the NLRA. The government represents the charging party in such litigation, so cases are inexpensive to bring, and remedies against unsuspecting employers include being forced to reinstate fired employees and pay them full back wages or salaries with interest.

The place to start in understanding this little known, but increasingly important area of the law is ' 7 of the NLRA. It is here that Congress enshrined the right of employees to acted as a group ' 'concertedly' ' in regard to 'wages, hours and other terms and conditions' of employment. Specifically, this law provides that non-supervisory employees have the right to:

' self-organization, to form join, or assist any labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. (Emphasis supplied).

It is this 'mutual aid or protection' language at the end of this clause that federal courts and the National Labor Relations Board have interpreted as protecting the group rights of even non-union employees. As early as 1962, in NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), the Supreme Court held that employees without a union may take collective and concerted actions to air their grievances regarding their terms and conditions of employment. All that is required is that the conduct is both concerted (meaning acting together or merely seeking to initiate or prepare for group action) and engaged in for the employees' mutual aid or protection. Employees need only act with or on the authority of other employees and in pursuit of a collective aim, rather than simply to advance a personal aim.

Section 8(a)(1) of the NLRA is the muscle behind ' 7. Section 8(a)(1) provides that a company commits an unfair labor practice if it takes any action to 'interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7.' This most often means that an employer violates the Act and opens itself up to the full range of remedies whenever it terminates or disciplines an employee or takes any other adverse action against an employee who engages in collected concerted activities. Section 8(a)(1) is particularly potent because it can be violated, even if a company does not intend to deny employees their ' 7 rights ' an employer will be found to have committed an unfair labor practice regardless of any malicious intent.

This article presents some recent cases where violations were found so as to best explain the parameters of the applicability of ” 7 and 8(a)(1) to the union-free workplace.

Why Are You Terminating That Employee?

The most obvious concerted activity that gets a company in trouble occurs when an employer terminates or disciplines an employee for acting jointly with other employees concerning issues of mutual concern. What an employer may see as dealing with disruptive complaining, the NLRB may see as unlawful interference with employees' collected concerted rights.

For instance, in North Carolina License Plate Agency, 346 N.L.R.B. No. 34 (2006), the NLRB, on appeal, ordered an employer to reinstate and pay full back wages to three terminated employees for behavior that many employers would think justified their terminations (or at least would create no liability under the law). In a meeting with their supervisor, the employees complained about favoritism, wages and bonuses, and threatened to report the employer to its biggest customer. The employer did not take such threats lightly, and fired the employees for being 'disloyal.'

The NLRB found the terminations illegal. It held that the employees had acted concertedly by coming together to complain about terms and conditions of their employment and did so for their mutual aid and protection. Indeed, the company's labeling the employees as 'disloyal' did more harm than good because the NLRB is often suspicious of such terms, which are frequently construed as code words for employees who are merely asserting their collective concerted rights. Other phrases to avoid for similar reasons include describing an employee as a 'troublemaker' or as not being a 'team player.'

Don't Go Overboard with Employee Confidentiality

Non-union employers are also often caught unaware and in violation of the law in relation to prohibitions limiting what employees can or cannot discuss in the workplace. Many employers have no idea that they cannot prohibit employees from discussing their wages and compensation with each other, and it is not uncommon to find such blatantly illegal wording enshrined in handbooks and other workplace policies.

Two recent cases come to mind. In Asheville School, 347 N.L.R.B. No. 84 (2006), the employer put the following seemingly innocuous and unobjectionable clause in each of its employment contracts: 'Your compensation is a matter of strictest confidence and concern only to you and to me.' However, the NLRB found that it was not so innocuous and unobjectionable. It reiterated that the mere maintenance of such a rule violates ' 8(a)(1) of the Act. The NLRB also found a violation in this case even though the Asheville School advised all of its employees that this provision should be stricken from their contracts and presented evidence that the clause had never been enforced. The case is also notable ' in a positive way ' as a reminder that one type of employee conduct that is not protected is 'griping.' Although not always clear as a practical matter, the NLRB found in this case that the employer did not violate the NLRA in terminating an employee who had raised concerns merely as a way of 'griping' as opposed to 'mutual aid or protection.'

Similarly, in Cintas Corp. v. NLRB, Nos. 05-1305, 05-1340 (2006), the U. S. Court of Appeals for the District of Columbia Circuit (where many NLRB rulings are appealed), held that uniform company Cintas violated the NLRA by maintaining policies in its employee handbook that prohibited disclosing 'any information concerning' employees. It made no difference that Cintas was (and is) a non-union company, and that the company had never disciplined an employee for violating these rules. These policies read:

We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its [employees], new business efforts, customers, accounting and financial matters.

It warned employees that they could be disciplined for:

violating a confidence or [for the] unauthorized release of confidential information.

Cintas acknowledged that the NLRA protects an employee's right to discuss wages and other terms and conditions of employment with other employees or with a union. However, Cintas argued, neither of these provisions even implicitly prohibited employees from discussing such matters, and asserted that there was no evidence that any employee had ever interpreted the language in such a manner. Further, according to Cintas, there was no evidence that the policy had ever been enforced in any way that inhibited any employee's rights.

The Court of Appeals found such arguments unpersuasive. The court held that regardless of intent or enforcement, the question is simply whether 'employees would reasonably construe the disputed language to prohibit [protected] activity.' Here, according to the court, a reasonable employee could have interpreted the language in these policies as preventing him or her from engaging in concerted activities. Moreover, the 'mere maintenance' of the rules was illegal regardless of whether any employee had ever actually been discouraged from discussing terms and conditions of employment or whether Cintas had ever actually taken any action against employees based on the rules.

Sexual Harassment Complaints

One final area of concern to non-union employers is sexual harassment cases. These types of cases have not infrequently morphed as of late into 'collected concerted activity' cases under the NLRA.

In Ellison Media Co., 2005 N.L.R.B. No. 136 (2005), for example, the NLRB overturned the decision of an administrative law judge, and found that Ellison Media violated ' 8(a)(1) of the Act in light of a supervisor's statements to employees that they should stop 'gossiping' about a supervisor's allegedly sexually inappropriate comments, which were being addressed through the usual HR channels. The trouble arose when one of these employees mistakenly copied the alleged harasser on one of their e-mails discussing the behavior and the investigation.

Although it appears that the behavior never rose to the level of sexual harassment, the company was not off the hook. The NLRB found that the company's instructions to the employees that 'this needs to stop now,' and that they were tired of the gossiping, violated ' 8(a)(1). The NLRB referenced an earlier case, Holling Press, Inc., 343 N.L.R.B. No. 45 (2004), where the NLRB held that there had been no unfair labor practice where an employer fired an employee for attempting to forcibly solicit a co-worker to corroborate her sexual harassment claim before a state agency investigating the claim. Unlike in Holling Press, where one employee was resisting another employee's attempts to complain jointly, in Ellison, the employees encouraged each other to confront the supervisor and report him to the company.

Conclusion

Even in today's increasingly non-union workplace, management must not ignore laws enacted primarily to protect unions. To do so could have a serious impact on non-union environments. All employers should exercise caution before taking disciplinary or other adverse action against employees for conduct that could be perceived as group activity.


Andrew M. Slobodien is a partner in the Employment & Labor Practice Group at Wildman, Harrold, Allen & Dixon LLP in Chicago. He can be reached at 312-201-2284 or [email protected].

If your company has no union, there is no need to worry about the National Labor Relations Act (NLRA). Right? Think again. More and more charges are being filed and successfully litigated on behalf of non-union employees under the NLRA. The government represents the charging party in such litigation, so cases are inexpensive to bring, and remedies against unsuspecting employers include being forced to reinstate fired employees and pay them full back wages or salaries with interest.

The place to start in understanding this little known, but increasingly important area of the law is ' 7 of the NLRA. It is here that Congress enshrined the right of employees to acted as a group ' 'concertedly' ' in regard to 'wages, hours and other terms and conditions' of employment. Specifically, this law provides that non-supervisory employees have the right to:

' self-organization, to form join, or assist any labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. (Emphasis supplied).

It is this 'mutual aid or protection' language at the end of this clause that federal courts and the National Labor Relations Board have interpreted as protecting the group rights of even non-union employees. As early as 1962, in NLRB v. Washington Aluminum Co. , 370 U.S. 9 (1962), the Supreme Court held that employees without a union may take collective and concerted actions to air their grievances regarding their terms and conditions of employment. All that is required is that the conduct is both concerted (meaning acting together or merely seeking to initiate or prepare for group action) and engaged in for the employees' mutual aid or protection. Employees need only act with or on the authority of other employees and in pursuit of a collective aim, rather than simply to advance a personal aim.

Section 8(a)(1) of the NLRA is the muscle behind ' 7. Section 8(a)(1) provides that a company commits an unfair labor practice if it takes any action to 'interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7.' This most often means that an employer violates the Act and opens itself up to the full range of remedies whenever it terminates or disciplines an employee or takes any other adverse action against an employee who engages in collected concerted activities. Section 8(a)(1) is particularly potent because it can be violated, even if a company does not intend to deny employees their ' 7 rights ' an employer will be found to have committed an unfair labor practice regardless of any malicious intent.

This article presents some recent cases where violations were found so as to best explain the parameters of the applicability of ” 7 and 8(a)(1) to the union-free workplace.

Why Are You Terminating That Employee?

The most obvious concerted activity that gets a company in trouble occurs when an employer terminates or disciplines an employee for acting jointly with other employees concerning issues of mutual concern. What an employer may see as dealing with disruptive complaining, the NLRB may see as unlawful interference with employees' collected concerted rights.

For instance, in North Carolina License Plate Agency, 346 N.L.R.B. No. 34 (2006), the NLRB, on appeal, ordered an employer to reinstate and pay full back wages to three terminated employees for behavior that many employers would think justified their terminations (or at least would create no liability under the law). In a meeting with their supervisor, the employees complained about favoritism, wages and bonuses, and threatened to report the employer to its biggest customer. The employer did not take such threats lightly, and fired the employees for being 'disloyal.'

The NLRB found the terminations illegal. It held that the employees had acted concertedly by coming together to complain about terms and conditions of their employment and did so for their mutual aid and protection. Indeed, the company's labeling the employees as 'disloyal' did more harm than good because the NLRB is often suspicious of such terms, which are frequently construed as code words for employees who are merely asserting their collective concerted rights. Other phrases to avoid for similar reasons include describing an employee as a 'troublemaker' or as not being a 'team player.'

Don't Go Overboard with Employee Confidentiality

Non-union employers are also often caught unaware and in violation of the law in relation to prohibitions limiting what employees can or cannot discuss in the workplace. Many employers have no idea that they cannot prohibit employees from discussing their wages and compensation with each other, and it is not uncommon to find such blatantly illegal wording enshrined in handbooks and other workplace policies.

Two recent cases come to mind. In Asheville School, 347 N.L.R.B. No. 84 (2006), the employer put the following seemingly innocuous and unobjectionable clause in each of its employment contracts: 'Your compensation is a matter of strictest confidence and concern only to you and to me.' However, the NLRB found that it was not so innocuous and unobjectionable. It reiterated that the mere maintenance of such a rule violates ' 8(a)(1) of the Act. The NLRB also found a violation in this case even though the Asheville School advised all of its employees that this provision should be stricken from their contracts and presented evidence that the clause had never been enforced. The case is also notable ' in a positive way ' as a reminder that one type of employee conduct that is not protected is 'griping.' Although not always clear as a practical matter, the NLRB found in this case that the employer did not violate the NLRA in terminating an employee who had raised concerns merely as a way of 'griping' as opposed to 'mutual aid or protection.'

Similarly, in Cintas Corp. v. NLRB, Nos. 05-1305, 05-1340 (2006), the U. S. Court of Appeals for the District of Columbia Circuit (where many NLRB rulings are appealed), held that uniform company Cintas violated the NLRA by maintaining policies in its employee handbook that prohibited disclosing 'any information concerning' employees. It made no difference that Cintas was (and is) a non-union company, and that the company had never disciplined an employee for violating these rules. These policies read:

We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its [employees], new business efforts, customers, accounting and financial matters.

It warned employees that they could be disciplined for:

violating a confidence or [for the] unauthorized release of confidential information.

Cintas acknowledged that the NLRA protects an employee's right to discuss wages and other terms and conditions of employment with other employees or with a union. However, Cintas argued, neither of these provisions even implicitly prohibited employees from discussing such matters, and asserted that there was no evidence that any employee had ever interpreted the language in such a manner. Further, according to Cintas, there was no evidence that the policy had ever been enforced in any way that inhibited any employee's rights.

The Court of Appeals found such arguments unpersuasive. The court held that regardless of intent or enforcement, the question is simply whether 'employees would reasonably construe the disputed language to prohibit [protected] activity.' Here, according to the court, a reasonable employee could have interpreted the language in these policies as preventing him or her from engaging in concerted activities. Moreover, the 'mere maintenance' of the rules was illegal regardless of whether any employee had ever actually been discouraged from discussing terms and conditions of employment or whether Cintas had ever actually taken any action against employees based on the rules.

Sexual Harassment Complaints

One final area of concern to non-union employers is sexual harassment cases. These types of cases have not infrequently morphed as of late into 'collected concerted activity' cases under the NLRA.

In Ellison Media Co., 2005 N.L.R.B. No. 136 (2005), for example, the NLRB overturned the decision of an administrative law judge, and found that Ellison Media violated ' 8(a)(1) of the Act in light of a supervisor's statements to employees that they should stop 'gossiping' about a supervisor's allegedly sexually inappropriate comments, which were being addressed through the usual HR channels. The trouble arose when one of these employees mistakenly copied the alleged harasser on one of their e-mails discussing the behavior and the investigation.

Although it appears that the behavior never rose to the level of sexual harassment, the company was not off the hook. The NLRB found that the company's instructions to the employees that 'this needs to stop now,' and that they were tired of the gossiping, violated ' 8(a)(1). The NLRB referenced an earlier case, Holling Press, Inc., 343 N.L.R.B. No. 45 (2004), where the NLRB held that there had been no unfair labor practice where an employer fired an employee for attempting to forcibly solicit a co-worker to corroborate her sexual harassment claim before a state agency investigating the claim. Unlike in Holling Press, where one employee was resisting another employee's attempts to complain jointly, in Ellison, the employees encouraged each other to confront the supervisor and report him to the company.

Conclusion

Even in today's increasingly non-union workplace, management must not ignore laws enacted primarily to protect unions. To do so could have a serious impact on non-union environments. All employers should exercise caution before taking disciplinary or other adverse action against employees for conduct that could be perceived as group activity.


Andrew M. Slobodien is a partner in the Employment & Labor Practice Group at Wildman, Harrold, Allen & Dixon LLP in Chicago. He can be reached at 312-201-2284 or [email protected].

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