Companies are seeing an increase in union organizing efforts. Unions result in employers losing flexibility and for that reason it is important to engage in efforts to minimize the chances that a union will organize a company's workplace. This five-part series will walk companies through the various steps of a union organizing campaign and strategies to avoid unionization and minimize its impact in the workplace. The focus of this first article is workplace policies, with subsequent articles in the series covering what employers need to know when employees are making efforts to unionize the workplace.
Workplace policies can play a key role in union organizing campaigns. Handbooks and policies are items that employees engaged in such efforts will review with union representatives to identify potential themes for organizing campaigns. In addition, an unlawful policy can potentially result in an election being overturned and, because of certain prohibitions, an employer's ability to change policies once an employer learns of a union organizing campaign may be limited.
In its decision in The Boeing Company, the National Labor Relations Board (NRLB or Board) reassessed its standard for when a work rule violates an employee's rights to engage in protected and concerted activity under the National Labor Relations Act (NLRA). Overturning a prior NRLB case decided in 2004, the NLRB set forth a new standard which focuses on the balance between a rule's negative impact on employees' ability to exercise their protected concerted activity rights and the rule's connection to employers' rights to maintain discipline and productivity in the workplace.
On June 6, 2018, the NLRB's General Counsel issued a memorandum (18-04) containing general guidance for NRLB Regional Offices as they are considering charges involving work rules.
In this memorandum, the General Counsel identified rules that are generally lawful because they do not prohibit or interfere with the exercise of an employee's rights guaranteed by the Act or because the potential adverse impact on protected rights is outweighed by business justifications associated with the rule (Category 1 rules). These rules include civility rules; no-photography and no-recording rules; rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; disruptive behavior rules; rules protecting confidential, proprietary, and customer information or documents; rules against defamation or misrepresentation; rules against using employer logos or intellectual property; rules requiring authorization to speak for the company; and rules banning disloyalty, nepotism or self-enrichment.
The General Counsel also identified rules that are not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule interferes with rights guaranteed by the Act, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications (Category 2 rules). Examples of Category 2 rules are: broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict voting for a union; broad confidentiality rules; rules regarding disparagement or criticism of the employer; rules regulating use of the employer's name; rules generally restricting speaking to the media or third parties; rules banning off-duty conduct that might harm the employer; and rules against making false or inaccurate statements.
Finally, the General Counsel identified rules which are unlawful because they prohibit employees' protected concerted activity rights (Category 3 rules). These rules include confidentiality rules specifically about wages, benefits or working conditions, and rules against joining outside organizations or voting on matters concerning the employer.
While the General Counsel's memo provided guidance based on rule categories, it also noted that the Board in Boeing did not alter well-established standards regarding certain kinds of rules where the Board has already struck a balance between employee rights and employer business interests. Examples of such rules cited by the General Counsel include no-distribution, no-solicitation and no-access rules, and the rules for apparel.
The Impact of Workplace Rules in the Union Organizing Context
These rules and their application are often important in the union organizing context. Lawfully drafted no-distribution, no-solicitation and no-access rules can allow employers to limit access of union organizers to company property. In addition, such rules may limit what employees can do when and where in organizing a union. In particular, employers may prohibit third parties, such as unions, from coming onto company premises, provided that the company does not discriminate in applying such a rule by allowing other third parties to come onto its premises. Similarly, employees may be prohibited from soliciting other employees for union-related activities, such as signing authorization cards, during the working time of either the soliciting employee or the solicited employee. Employees also may be prohibited from distributing union literature in work areas and on working time. While these types of lawful rules can help an employer who is facing an organizing campaign, as noted above, if these rules are unlawful, they could potentially result in an election being overturned. Thus, it is important for these rules to meet the requirements of the NLRA.
Apparel rules also present an issue in the organizing context to the extent that they prohibit wearing items, such as buttons, pins or hats (often referred to as union insignia), which employees often use as a way of showing support for a union. The Board has held that most employers seeking to assert a complete ban on union insignia must show “special circumstances.” Unfortunately, these circumstance are not normally present. For healthcare employers, the Board looks to whether the employer’s prohibition on union insignia applies to “direct patient-care areas”. Once again, if an employer has an overly broad rule prohibiting the wearing of union insignia, the results of an election may be called into question.
Now is the time to take your handbook and other polices off the shelf. The Boeing decision and General Counsel's guidance provide an opportunity to implement rules that maximize the employer's rights in the workplace. However, they also provide an opportunity to ensure that a company's rules will be useful if a union organizing campaign occurs and will not create the potential for overturning any favorable results in an election. If employees are interested in petitioning for a labor union, an employer who has already instituted generally lawful work rules is better positioned to assert that these rules are already in place. Further, if the employer administers these rules in a fair and consistent matter, employees are also less likely to be interested in unionization in the first place.