Union Issues Impacting NonUnion Workplaces

Key provisions of the National Labor Relations Act and its impact on nonunion employers, both small and large.

By Christine V. Walters, JD, MAS, SHRM-SCP, SPHR

April 2015

Like some nonunion employers, you may be either unfamiliar with the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB), or believe that neither impacts your nonunion workplace. That would be not only incorrect but also unwise.

The NLRA provides nearly all nonsupervisory employees, union or nonunion, certain rights to act in concert (e.g., two or more employees having conversations or taking action with regard to wages, hours, or conditions of employment). These rights are commonly known as Section 7 rights. Section 8 of the NLRA also provides that employers, union or nonunion, may not interfere with employees’ exercise of their Section 7 rights. If you are waiting for the Section that describes employers’ rights, stop waiting—there isn’t one.

So how can this practically impact your workplace policies, procedures, or practices? A common example is when an employer communicates to its employees that wages are confidential and should not be disclosed or discussed with anyone. That policy or practice on its face may violate the NLRA. How can employees act in concert with regard to their wages if they are not allowed to discuss them with one another or with a third party such as a union organizer? But that is far from all. The scope and variety of issues addressed by the NLRB over the last few years has been a bit overwhelming. On more than one occasion the NLRB has found that employees have, with some limitations, the right to:

• reproduce and/or use the employer’s logo
• take and use photographs of employer property
• access the employer’s property during nonworking time
• discuss workplace investigations before they are concluded
• use derogatory and even profane language directed to or about coworkers or managers when discussing workplace conditions, such as via social media
• wear pins or other insignia that demonstrate support of a union

Just last month, the Board (NLRB) set new precedent, overturning its prior decision, and held that covered employees may have the right to use your company’s email system during the employee’s nonworking time to engage in Section 7 activity.

Here is a scenario: You have likely granted your employees access to your company email system for business purposes. Now let us assume you have a policy that expressly states that all electronic systems, including email messages, are company property and are to be used exclusively for business purposes. You even go so far as to clarify that using the electronic systems for engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company, as well as sending uninvited email of a personal nature, are prohibited.

Imagine one day you find one of your employees is using the company email system during his or her unpaid meal periods to send messages to coworkers about a union organizing campaign. Can you fire or issue corrective action to the employee for violating your policy and using company property to conduct personal business?

On December 11th, in a 74-page decision the NLRB ruled with a presumption that the answer is No. The Board (NLRB) writes, “We adopt a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about the terms and conditions of their employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.”¹

How would an employer demonstrate special circumstances? With care. The Board (NLRB) explains, “An assertion of special circumstances will require that the employer articulate the interest at issue and demonstrate how that interest supports the email use restrictions it has implemented.”² So if your email system crashes as a result of so many employees using the system during their nonworking time, that might justify special circumstances. Remember that a key in enforcing any employment policy is also ensuring equitable and consistent application. You may have a tough time enforcing a ban on personal use of email for discussions of wages, hours, or conditions of employment if you are letting employees use the same email system for other personal activities like Super Bowl and March Madness pools, buying/selling cookies, and shopping.

So the next time you update your employment policies or employee handbook consider how any of these issues might impact your related practices. And as always, use your company’s legal counsel as a sounding board. 

REFERENCES

1 and 2. National Labor Relations Board. http://nlrb.gov/case/21-CA-095151. Published December 11, 2014. Accessed March 2015

Christine V. Walters, JD, MAS, SHRM-SCP, SPHR, is an independent human resources, and employment law consultant for DBA FiveL Company out of Westminster, Maryland. She can be reached at info@FiveL.net.