Introduction

The National Labor Relations Act (“NLRA”) was enacted by Congress in 1935. For most if its existence, it has been a law that employers with unions knew well, but was largely ignored by employers without a union presence. In fact, most employers without a unionized work force probably never even considered that the NLRA would apply to them. But it does.

The NLRA applies to almost all private employers regardless of whether there is a union presence. Section 7 of the NLRA grants employees several rights, including the right to “engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” An employer violates Section 8(a) (1) of the NLRA when they “interfere with, restrain or coerce employees in the exercise of the rights guaranteed by Section 7.” An employee is considered to be engaged in “concerted activities” when the employee acts for the purpose of benefiting a group of employees.

The National Labor Relations Board (“the Board”) enforces the NLRA. In recent years, the Board has focused its enforcement of the NLRA to a much larger extent on non-unionized employers. The NLRB’s increased attention to the non-unionized sector may be the result of significantly declining union membership in the United States. In 1983, 20.1 percent of workers in the U.S. were in a union. The percentage of U.S. workers in a union fell to just 11.8 percent in 2011.[1]

Limiting the Application of Company Confidentiality Policies

The Board’s enforcement of the NLRA in the non-unionized workplace has been in some surprising areas – including areas that the drafters of the NLRA could not possibly have contemplated when the NLRA was written. For example, because of the prevalence of social media both inside and outside the workplace, many employers now have social media policies in their handbooks.[2] Recently, the Board brought a charge against an employer who terminated an employee for posting disparaging statements about her supervisor on Facebook. Am. Med. Response of Connecticut, Inc., NLRB Case No. 34-CA-12576. The Board deemed the employee’s posting protected conduct under the NLRA. The employer maintained a “Blogging and Internet Posting Policy” that barred employees from “making disparaging, discriminatory, or defamatory comments when discussing . . . the employee’s superiors.” The parties reached a settlement, so the case leaves many unanswered questions. But it is clear that employers should evaluate their social media policies to make sure they do not violate an employee’s right under the NLRA to engage in concerted activities.

Another area where non-unionized employers may not realize the reach of the NLRA is confidentially policies – especially as those policies are applied to investigations of employee complaints of discrimination or harassment. In Ellison Media Co., 2005 NLRB No. 136 (2005), a group of employees emailed each other about a supervisor’s alleged sexually inappropriate comments and the resulting investigation. A supervisor told the employees to stop “gossiping” about the issues, which were being addressed through the appropriate human resources channels. The NLRB found that the employer violated Section 8(a)(1).

In a recent case, Banner Health Sys. d/b/a Banner Estrella Med. Ctr., 358 NLRB No. 93 (2012), the Board found that a nonunion employer violated Section 8(a)(1) because of its policy of instructing employees making harassment complaints not to discuss the company’s subsequent internal investigation with other employees. According to the Board, employers cannot have blanket policies against employees sharing information regarding internal investigations with other employees. Employers must evaluate the need to issue such instructions on a case by case basis. According to the Board, “[t]o justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.” Examples of business justifications trumping Section 7 rights include: (1) where witnesses need protection, (2) where evidence is in danger of being destroyed, or (3) confidentiality is needed to prevent a cover-up.

Similarly, in Cintas Corp. v. NLRB, 482 F.3d 463 (D.C. Cir. 2007), Cintas, a nonunion employer, had a confidentiality policy that prohibited employees from discussing their pay. Even though Cintas had never enforced its policy, the D. C. Circuit upheld the Board’s determination that where the confidentiality policy violated Section 7, because it could reasonably “chill” an employee’s ability to discuss wages with other employees.

Employee Use of Company E-Mail Systems to Engage in Protected Activity

E-mail policies are another source of potential NLRA violations for nonunion employers. Employers often place restrictions on the use of company email systems for non-work related purposes. However, protected employee discussions about the terms and conditions of employment, whether or not a union is involved, take place by e-mail. Historically, the Board has taken the position that employer e-mail systems used regularly by employees to communicate are extensions of the workplace, such that employees are entitled to communicate via e-mail about unions and the terms and conditions of their employment. The general rule was that, although employers could prohibit the use of e-mail for non-work related subjects, if the employer, in practice, allowed the personal use of e-mail, it was discriminatory to discipline only those workers who use e-mail for what qualified as protected activity under the NLRA.

The Board has since issued a memorandum providing guidance on what email policies would be found to violate the NLRA. In one example, the employer was found to have discriminated by prohibiting union-related solicitations when it had allowed e-mail solicitations regarding sales of Avon, Mary Kay cosmetics, Tupperware, homemade crafts, and items for school fund-raising purposes. The Board categorized the solicitations as on behalf of “outside groups or organizations,” as opposed to personal solicitations.

In another example, an employee was disciplined for sending e-mails to 20 employees regarding an off-sight union organizing meeting. Prior to sending the e-mail, the employee sought direction on personal use of the computer system from the employer’s IT Director, who indicated that personal use was permitted during non-work time, and, in a pinch, during work time. Although the discipline was supported by a facially valid handbook provision, there was evidence that other employees frequently sent non-work related e-mails and the employee was disciplined because of the union-related content of the e-mail.

Another example involved an employee who anonymously e-mailed a member of a medical organization’s voting delegates to request assistance in presenting an employee petition advocating changes in working conditions. After an investigation revealed the identity of the employee who sent the e-mail, the employer discharged the employee. The Board found “that concerted employee protests of supervisory conduct that affect employee working conditions are protected under Section 7 of the Act and [do] not lose that protection when employees reach outside an employer’s ‘chain of command ….’” The employee’s e-mails were not disruptive, could not be prohibited as solicitations (they did not encourage employee action on behalf of a union or other outside group), and were more job-related than many personal e-mails the employer permitted.

Conclusion

The trend of increased Board enforcement of the NLRA against nonunionized employers is unlikely to reverse. Therefore, employers should carefully review their policies and revise or eliminate those that could violate the NLRA, either directly or in application.