An Uninvited Guest: The NLRB Settles In

An Uninvited Guest: The NLRB Settles In

The NLRB continues its march into everyday workplace issues.  It started in earnest with social media.  It has now moved into the arena of employer policies and handbooks focusing on the impact of employer policies on protected, concerted activities.  To further educate today's workforce, it has set up a page on its website dedicated to concerted, protected activities.

Dan Schwartz at the Connecticut Employment law blog had a post with remarks from Acting General Counsel Solomon concerning a focus on the at will disclaimer contained in virtually all handbooks.  According to Solomon, employees could reasonably believe that even union representation and a collective bargaining agreement could not change their at will status.  In American Red Cross Arizona Blood Services Region, the administrative law judge found that the at will waiver is essentially a waiver in which the employee agrees that the at will status cannot be changed, thus relinquishing the employee's right to advocate concertedly to change the at will status with or without the help of a union.  The judge went further and stated that the waiver was for all practical purposes, an agreement not to make any efforts to have a union or a collective bargaining agreement.

The at will waiver is a creature of state law used to prevent employees from claiming that the employer had to have "just cause" to terminate them.  It has been in use for literally decades.  The NLRB's recent epiphany as to employers' true motive for use of the disclaimer is baffling.  It is significant that the NLRB has not referenced any case where an employer used the disclaimer for this unlawful purpose.  The existence of the disclaimer is often one of the union's top issue in organizing--job security based on a collective bargaining agreement.

Jon Hyman at the Ohio Employer's Law Blog posted an open letter to the Board asking it to consider the real world implications of its recent decision finding an employer violated the act by instructing employees not to discuss the matter among themselves which was under investigation.  In Banner Health System, the panel majority said that for an employer to prohibit discussion it would have to determine whether: witnesses needed protection; evidence was in danger of being destroyed; testimony was in danger of being fabricated; and whether there was a need to prevent a cover-up.

A recent administrative law judge decision involving Target serves as a cautionary example to employers involved in representation elections.  The judge had found the company's rules and policies covering access to the facility; dress code; no distribution/no solicitation; information security; and social media were overly broad and unlawful.  The unlawful policies supported the union's objections to the election, and the judge recommended the election which Target won be set aside and that a new election be conducted.

The message to employers is that employee handbooks and policies need to be reviewed in light of the Board's widening role in the workplace.  The position of the NLRB cannot be ignored even though it ignores decades of how the various rules have been implemented.

It is ironic that at a time when employees are increasingly using the internet, smart technology, and social media to interact and to reach out for information as never before, the NLRB and the Acting General Counsel assume that today's workforce is woefully unsophisticated when it comes to grasping the meaning of employer policies and work rules. Today's workforce has access to immediate information on virtually any subject.  The naivete attributed to today's workforce is incomprehensible.

Prohibiting employers from telling employees to refrain from discussing the subject of an investigation runs contrary to the interests of all.  Perhaps the Acting General Counsel needs to review some cases dealing with employer actions when confronted with of a complaint sexual harassment and the sensitivity with which such an investigation must be conducted.

The election in November will determine whether the visit is only starting or whether the guest will be asked to move on.

For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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