Given the political tenor of the NLRB in recent times, the outcome of the Presidential election again will have a big impact on the NLRB’s direction.

Although the new NLRB rules requiring employers to post notices of union organizing rights and requiring expedited union election procedures are presently hung up in litigation, the NLRB could have taken steps—both procedural and substantive—to try and advance the concepts behind the rules. However, it has refrained to do so. Four more years of the current political majority at the NLRB could well mean that new and more creative alternatives will be floated to achieve the same purposes without waiting for the slow processes of litigation and appeals to resolve the legality of the current initiatives.

The prospect of minority unions under Specialty Healthcare also remains a key issue on the table. In that case, the Board ruled that certified nursing assistants at a nursing home could vote in a union election without the inclusion of other nonprofessional employees with whom they shared a community of interest. The Board said the community of interest must be “overwhelming” to justify inclusion of all. Similarly, in DTG Operations, the Board built this road out a little more, ruling that 31 airport car rental service agents could vote in a union election without inclusion of 78 other bus drivers, mechanics, vehicle shuttlers and staff assistants working with them on a regular basis in a purported community of interest.

Additionally, in a petition for a representation election at a Bergdorf Goodman department store in Manhattan, the NLRB Regional Director decided to permit a department store representation election including only the shoes department associates on the second and fifth floors. The latter example is, of course, management’s worst nightmare about the prospect of minority unions in a workplace. The appeal process will help to elucidate the lawfulness of NLRB’s new direction on voting units, but a change at the top in Washington likely also would mean a big change in direction at the NLRB on this issue.

On June 18, 2012, when the notice posting rule became stymied in the courts, the NLRB went live with a new Website on Concerted Activity. The introduction to the website makes clear that it is focused upon the rights of the 93% of the private American workforce that is non-union. The website provides 12 examples of actual NLRB cases from around the U.S. involving workers who engaged in what the NLRB believed was concerted activity. The introduction to the website makes clear that it is focused upon the rights of the 93% of the private American workforce that is non-union.

The website provides 12 examples of actual NLRB cases from around the U.S. involving workers who engaged in what the NLRB believed was concerted activity. In five cases the Board found unlawful action by the employer and in seven others the cases settled at the investigation or complaint stage. The facts of the cases are recited on the website. In one case that settled the employee was reinstated with full back pay and is quoted on the NLRB website as making the following comment, “I believe that when [co-workers] saw me come back, they were relieved in knowing that justice sometimes prevails. I believe it gave the rest of the employees hope.” In a second settlement, an employee received full back pay and an offer of reinstatement that she declined. The web site quotes her as saying, “The experience has taught me that I do have rights and no one can abuse them. . . . I had faith that we would win and that we would show the company that they could not walk all over us.” In a third settlement an employee received back pay and an offer of reinstatement that she declined. The web site quotes her as saying, “The greatest satisfaction I received from the whole experience was knowing that my case became a catalyst in changing [the employer's] Employee Manual, thus ensuring that other employees would no longer be subjected to such unrealistic and ridiculous rules.” Assuming that a Website on Concerted Activity is a necessary educational tool for the NLRB, one may also assume that the partisan tone of the current website regarding settled matters involving non-union employees might change with a change in the political majority at the Board.

Indeed, the current Board and General Counsel appear on a mission to expand the parameters of protected concerted activity under Section 7 of the Act. Even though the General Counsel has endeavored mightily to provide guidance on what constitutes “concerted activity” in the use of social media, confusion still abounds. In the General Counsel’s guidance on social media use dated May 30, 2012, he cites a case in which he found overbroad—and therefore unlawful—a provision instructing employees not to share confidential information with co-workers unless they need the information to do their job and also not to have discussions regarding confidential information in the breakroom, at home, or in open areas and public places. Nevertheless, he cites a different case in which an employer’s prohibition on discussion of “secret, confidential, or attorney-client privileged information” was found lawful because it is “clearly intended to protect the Employer’s legitimate interest in safeguarding its confidential proprietary and privileged information.” He further approved of a major retailer’s social media policy that included an admonition to “Maintain the confidentiality of (store) trade secrets and private or confidential information. . . . Do not post internal reports, policies, procedures or other internal business-related confidential communications.” All three examples, however, plainly involve employer prohibitions on social media posts of “confidential” information, and blur the line between legal and illegal prohibitions.

In the same vein, in the Banner Health Systems decision of July 30, the Board held 2 -to-1 that an employee’s right to engage in concerted activity trumps an employer’s interest in the “integrity” of an internal investigation. Therefore, the Board says it is the employer’s burden “to first determine whether in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.” As a Vice President for Human Resources at a large technology company pointed out in a recent panel presentation in which we participated, the purpose of a workplace investigation is for the employer to make a good faith effort to deduce the truth of what occurred by, among other techniques, talking to employees and assessing their credibility. It is very similar to a jury trial or arbitration where the jury or the arbitrator is the one trying to deduce the truth. The Rule of Sequestration is used in these proceedings to protect the integrity of the proceeding and to avoid fabrication and collusion, thus recognizing the critical importance of confidentiality. No burden of proof is put on the party invoking the Rule as the integrity of the proceeding is paramount because any damage done by fabrication or collusion cannot be undone. The Board’s ruling appears to be designed to interfere with the employer’s ability to discern the truth, particularly because the employer must prove the existence of one of the four exceptions which allow the employer to suggest employees maintain confidentiality at the very outset of investigation. It will generally be very difficult—if not impossible—to know if any of the four situations may occur because when an investigation begins the employer usually has limited factual information. It also appears to give credence and support to employees who want to “get their stories” straight, not necessarily by fabrication, but by omission or coloring other’s recollections. Those situations would not trigger one of the Board’s four exceptions for insisting on confidentiality. Given that there are only four limited exceptions, it raises the question of how an employer can ever meet the burden of proof.

Finally, in the interest of expanding the traditional concept of protected concerted activity, the Board’s General Counsel and its administrative law judges have so far undertaken an assault on decades old policies regarding employment-at-will disclaimers in company employment manuals. In a case involving the American Red Cross, an NLRB ALJ concluded that Section 8 (a)(1) was violated by an employee handbook provision which stated, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” And the NLRB General Counsel issued a complaint against Hyatt Hotels alleging it was a violation of Section 8(a)(1) to require an acknowledgement that employment is at will and cannot be altered except in writing by the Executive Vice President or Chief Operating Officer. Also at the recent conference panel on which we participated, the same VP of Human Resources for a large technology company pointed out that employment-at-will is a state common law concept that is used to interpret state contract and tort law.

It has long been recognized that the employment-at-will doctrine can be limited by contract such as a collective bargaining agreement, a statute such as Title VII or the NLRA or a judicial decision involving, for example, the covenant of good faith and fair dealing. There are currently at least 27 different federal laws that could be viewed as exceptions to the employment-at-will doctrine, yet we cannot find any judicial or administrative decision or advice that indicates using common employment-at-will language violates employee rights under those laws. Just about every state has similar laws and we cannot find any state judicial or administrative decision or advice that does so either. Those laws protect employees from adverse action based upon their characteristics or their actions and also protect them from retaliation for exercising their rights. If none of these other statutes are violated by the mere existence of employment- at-will language, why should a different interpretation apply to under the premise that concerted activity must be protected under the NLRA?

The courts may sort out many of the questions we have raised in this short article, but surely a change in the political majority at the NLRB would also have a major impact.