Courts are issuing decisions that may shock employers.

The National Labor Relations Act (NLRA) was initially passed in 1935. Most employers think of the NLRA as the federal law that governs how employers recognize and deal with unions, and with more than 93 percent of the private sector not represented by unions, many construction employers believe this law may not apply to their workforces. Others simply are unfamiliar with this law. But, with political changes in Washington, the current National Labor Relations Board is breathing new life into old rules protecting non-union employees and issuing decisions that may shock non-union employers.

Broad Rights
The NLRA’s primary employee protection is contained in Section 7, which states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. ...

This language gives construction employees the right to organize, form, join or assist unions. Another NLRA section supplements these rights and prohibits employers from interfering with employee rights, coercing or discriminating against them and retaliating against them for the exercise of their rights. Those protections are usually invoked when a union is attempting to organize a group of employees or when it already represents them.

Section 7 also distinguishes between the right “to bargain collectively” from “other concerted activities for the purpose of … other mutual aid and protection.” In other words, this section also protects workers who are not represented by a union, are not seeking to be represented or are not bargaining collectively. The phrase regarding “other concerted activities for the purpose of … other mutual aid and protection” is the one that has been interpreted over the years to protect non-union employees. It is also the phrase that the current board has interpreted expansively to protect non-union employees in today’s workplace.
Interpretation of Section 7 involves consideration of two questions:

  • Were the employees’ activities “protected”?
  • Were the employees’ activities “concerted”?

Both elements must be present for there to be a violation of the law.

Protected Activities
The NLRA does not contain an exhaustive list of “protected” activities. Statutory interpretation is left to the board and courts. Over the years since the NLRA passed, case interpretation has developed a body of law defining what employee rights are “protected.” For example, employees have rights to engage in the following activities:

  • Solicit for union-related causes or membership in a union during lunch and break times, even though they are on their employer’s property
  • Wear union insignia, unless the employer proves the existence of exceptional circumstances
  • Engage in refusals to work in protest of pay, benefits or working conditions
  • Complain about their pay or benefits to each other, their employer or third parties
  • Discuss their pay or benefits with other employees or third parties
  • Bring employment-related concerns to the attention of third parties, such as the media, the employer’s customers or government agencies, unless they disparage the employer’s product or services in a way that their remarks are defamatory and made with knowledge of their falsity or in reckless disregard of the truth
  • Complain to or enlist the support of government agencies
  • Promote or rally in support of legislation that their employer opposes
  • File charges or litigation against their employer

Though the current board may be expanding the types of activities that are “protected,” these basic rights existed before the current board took office.

Concerted Activities
The dictionary definition of “concerted” requires action involving two or more people, but the board and courts took more than four decades to define this term. Now, “concerted” covers actions by two or more employees as well as situations in which an individual seeks to initiate, induce or prepare for group action or bring group complaints to the employer’s attention.

Long-Standing Rules
The current board has received an unprecedented amount of publicity over its application of Section 7 to regulate social media, “employment at will” policies and other work rules in the non-union setting. Here are a few of its more noteworthy holdings:

Social Media Policies – Recently, some employers have been accused of maintaining overly broad social media policies and illegally discharging or disciplining employees. The board’s acting general counsel published three memos on social media to give employers direction. The past summer, the board began to issue decisions on this subject.

In one case, the board found unlawful a rule that read “Statements posted electronically … that damage the company, defame any individual or damage any person’s reputation, or violate the policies outlined in the employee agreement, may be subject to discipline, up to and including termination of employment.”

In another case, the board found unlawful the discharge of employees who used Facebook to discuss work issues during their non-working time. In this case, one employee indicated that she was going to complain to management about the work performance of other employees. Then, other employees commented on the post. The board found the online exchange to be protected concerted activity because it was the workers’ first step toward group action to defend against the accusations they believed would be made to management. 

Employer Work Rules – In reviewing employer work rules, the basic question that the board asked for years was “Does the rule tend to interfere with employees’ exercise of their Section 7 rights?” The current board views employee rights broadly and has declared a number of rules to be unlawful under this test. Particularly noteworthy rules the board declared unlawful include those that accomplish the following:

  • Require employees “to be courteous, polite and friendly” and to not “be disrespectful or use profanity or any other language which injures the image or reputation of the dealership”
  • Prohibit off-duty employees from entering the workplace except to conduct employer-related business
  • Prohibit off-duty employees from entering the workplace, except to attend employer-sponsored events
  • Prohibit employees from “walking off the job” or “willfully restricting production”


 

At-Will Policies – Recent board cases also signal a need for construction employers to review their at-will policies. In one case, an administrative law judge found unlawful an at-will acknowledgment form stating “The at-will relationship cannot be amended, modified or altered in any way.” In another case, the board’s general counsel found that it was lawful for an employer to state in its at-will policy that “No representative of the company has any authority to enter into an agreement that is contrary to the employment at-will relationship.”

The Employer’s Approach
Though many employers may not realize it, non-union employees have long-standing rights to engage in protected concerted activities. Additionally, the National Labor Relations Board is expanding the enforcement of these rights. Therefore, in the current environment, employers should adopt a compliance-oriented approach to labor relations. At a minimum, employers should review their policies on social media, off-duty access to the jobsite, at-will employment and other policies that the current board may deem as infringing on employee rights to engage in protected concerted activities. Employers also should seek legal advice before terminating an employee for any activity that the board may consider protected or for violation of policies or rules that have been subjects of recent board litigation.