The National Labor Relations Act ("NLRA") protects employees who wish to unionize and collectively bargain. Section 7 of the Act gives employees the right to self-organize; join, form or assist a labor organization; to bargain collectively through representatives of their own choosing; engage in other concerted activity for purposes of collective bargaining or other mutual aid or protection; or to refrain from these activities. It also protects, and applies to, employees of non-union employers, but this is a truism not completely understood (or, sometimes, acknowledged) by non-union entities. Employers have to know when employees are engaging in protected, concerted activity, because a misstep or wrong decision made on the belief that there is no "protection" for these workers can lead to huge liability.
To be concerted, employee activity must involve more than one employee. In addition to acting together, an employee or a small group of employees may act on the authority of or on behalf of other workers. In other words, an employee's actions may be concerted even though he or she acts alone. The activity will be for "mutual aid or protection" where the activity seeks to improve the terms and conditions of employment. Nearly any activity arising from any matter in which employees have a legitimate interest is an activity for employee mutual aid or protection. This is true even if the activity goes outside the immediate employer-employee relationship. Note that, under this law, confidentiality policies that seek to stop employees from discussing salaries may be illegal and amenable to attack under the NLRA.
So for non-union employers also, employer work rules and policies will violate the NLRA when they hamper employees in their exercise of their rights under the Act. Non-union employers must also be cognizant of principles involving the implementation of no-solicitation policies. Solicitation can be restricted but such policies cannot be disparately enforced, or a union would be able to win the right to solicit for its cause, i.e. organizing. These rules also apply to solicitation and the use of company computer and internet capabilities-which have serious consequences in the brave new world of social media.
Employers implementing overly broad social media policies risk exposure to liability if the policies can be reasonably construed as prohibiting employees from engaging in Section 7 activities. These social media communications fall under the mutual aid or protection rules. Postings on Facebook and other social media outlets containing what anyone would deem offensive or provocative language has been found to warrant protection under the Act. These rules are still in flux, with no obvious sign that the pendulum is turning back to a more balanced approach.
Even more troubling for non-union employers are the new so-called "ambush election" rules which were implemented in April 2015. The new rules have sped up the election process. Under the prior rules, the Region generally decided matters relating to who was included and excluded from the unit prior to the election being held and the Board would not schedule the election within 25 days of the Decision and Direction of Election so as to give the parties time to request review of Regional Director's ("RD") Decision. Under the new procedures, the RD is instructed to schedule the election at the earliest date practicable. This means elections could theoretically be scheduled less than 2 weeks after the petition has been filed. The RD is able to do this because the RD generally defers litigation over the inclusion/exclusion of individuals or groups of employees until after the election has been held--- at least where fewer than 20% of unit at issue. The Board also made Post-Election Review by the Board discretionary and eliminated the 25 day wait before an election can be scheduled. Through June 5, 2015, median number of days from petition to election at polling place declines by 35%. The purpose of the new rules is to assist unions in organizing employees by significantly reducing the time employers have to lawfully educate employees about the negative consequences of unionization. The Board's new rules have drastically reduced the time employers have to educate employees about unions.
An employer probably does not need to know all the legal nuances involved in these matters; however, in this session our expert speaker, Mark E. Tabakman, will teach you the "art" of identifying when such issues (and possible exposures) might be present and how to correct or rectify it before the real trouble starts. You will walk away with a PowerPoint presentation that is a virtual "law book" though written in plain, understandable English, which will give you some basic understanding regarding flashpoint issues and when they might become pressing problems.
Who should attend?
Mark is a labor and employment lawyer at Fox Rothschild, LLP who handles both union and non-union matters for employers across the country. He counsels human resource professionals and in-house counsel in complying with the myriad federal/state employment laws to provide creative, practical and cost-effective solutions... More info