Employers who think that having a union-free workplace will protect them from National Labor Relations Board (NLRB) actions should think again. The federal labor agency has been broadening its reach into examining employer practices in non-union workplaces with no union activity taking place.
One area which is drawing increased scrutiny from the NLRB is the content of employee handbooks, as indicated by recent rulings issued by the board (Banner Estrella Medical Center, 358 NLRB No. 93, Hyundai America Shipping Agency Inc. 357 NLRB No. 80 and Karl Knauz Motors, 358 NLRB No. 164).
Unless the November elections result in a shake-up of the Board, employers and HR staff responsible for writing and maintaining the content of employee handbooks may want to scrutinize these documents for potential troublespots.
Writing in the September 2012 edition of "Legal Report", a monthly legal publication from the Society of Human Resource Management, Elizabeth Cyr, an labor and employment law attorney in Washington, D.C., discussed the Hyundai case, which began when a terminated employee filed a complaint with the NLRB over a confidentiality rule published in the employee handbook:
Employees should only disclose information or messages from these … systems [including the respondent’s e-mail, instant messaging and phone systems] to authorized persons. … Any unauthorized disclosure of information from an employee’s personnel file is a ground for discipline, including discharge.
In the case, the Board ruled that Hyundai America's failure to limit the prohibition to confidential matters not involving terms and.conditions of employment could prevent employees from engaging in the kind of discussion which they argued was protected under Section 7 of the National Labor Relations Act, which allows employees to "engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection."
In a split decision, the Board did not order the former employee reinstated, as the employer established sufficient independent grounds to justify the employee's dismissal.
In the Banner ruling, the Board ruled that the employer could not prohibit its employees from discussing complaints lodged with their employer during the complaint investigation. In this case, the Board cited it's ruling in the Hyundai matter:
The Board overruled the judge and held that the employer’s “blanket approach” to confidentiality violated Section 8(a)(1) of the Act. Rather, the Board held, it was the employer’s “burden” to “‘first determine whether in any give[n] investigation witnesses need[ed] protection, any evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.” (quoting Hyundai America Shipping Agency, 357 NLRB No. 80 (2011)).
In the Knauz case, the NLRB heard the case of a former employee of a car dealership who challenged his firing after posting comments and photos critical of his employer on Facebook. At issue was a published "Courtesy" policy in the employee handbook which was alleged to have the potential to violate the right of employees' to share information related to their Section 7 rights:
Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
The Board held the last sentence of the policy was broad enough that it could be construed by both employees and the employer as prohibiting speech that could restrict potentially-protected speech under Section 7. While the former employee claimed he was trying to improve working conditions, the Board found that the Facebook posts, the Board found that the posts for which he was fired did not constitute a protected activity.
In each of these cases, the Board ruled that broad policies published in employee manuals that govern what employees could and could not discuss in non-union workplaces could violate protected speech. In two of the three cases, the Board upheld the terminations which prompted the actions rightful dismissals, but still took issue with the policies presented by the complainants.
Until such time that major changes take place with the NLRB, employers with non-union workplaces should take these decisions as warnings that having a non-union workplace is no protection from scrutiny and take appropriate measures to protect themselves from potential actions by the agency.