Matters Column

‘Rip Van Winkle’ agency inserts itself into non-union world

March 14, 2014
TAGS UAW / unions
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Unions made the news recently when an expensive UAW effort to organize employees at Volkswagen AG's Chattanooga, Tenn., plant failed to result in a win for the union.  

The UAW's loss was heralded as another sign of the decline in union power. The Wall Street Journal opined that unions in the private sector are only sustained by laws that are favorable to them and the "brute force" of the federal government.

The agency charged with enforcing those laws is one of the federal government's oldest: the National Labor Relations Board. For decades, the NLRB was a busy agency that often made the headlines. Much like the newspapers that featured those headlines, however, the NLRB faded from preeminence.  

Since the 1980s, this "granddaddy" of federal agencies started to show its age as the workplace evolved. When the NLRB tried to revive longstanding doctrines in this changing environment, its lack of effectiveness caused one court to dub it the "Rip Van Winkle" of federal agencies.

Still, the agency's efforts to stay relevant have continued in spite of frequent criticism and ongoing political struggles. Attempts in recent years to streamline union representation election rules and require employers to expressly notify employees of their rights to unionize were rebuffed through court challenges, however.

More recently, and less prone to court challenge, the NLRB has sought to become more of a factor in workplace life by challenging employer policies that have become commonplace during the last 30 years. To attack these longstanding non-union workplace standards, the NLRB has dusted off its original mandate to prohibit employer interference with "protected, concerted activity" by employees, including discussion about wages, hours, terms and conditions of employment, access to NLRB processes, and efforts to form and join unions, broadly interpreted.

Ironically, the NLRB first found access to these non-union employer policies as a result of its unprecedented forays into regulating a brand new phenomenon: social media comments.  

Everyone has probably seen negative Facebook employee comments directed at their bosses, co-workers, or working conditions. Such comments were made in an untested legal environment. Into that vacuum stepped the NLRB, which has been quick to crack down on employers who take action against employees whose right to engage in "protected concerted activity" extends to the exercise of free speech rights on social media, according to the NLRB, as long as such speech does not rise to the level of actionable defamation, or constitutes mere "personal" venting, exceptions the NLRB interprets relatively narrowly.

In the process of reviewing complaints brought to it by discharged employees who had made Facebook comments to which their non-union employers took offense, the NLRB discovered a number of common non-union workplace policies that it ordered the charged employers to rescind.

The first policies that came under the NLRB's scrutiny as a result of the social media cases were policies limiting employee discussion of wages and salaries in the workplace. Such policies are anathema to the NLRB, which considers open discussion of co-workers' wage and benefits to be key to Section 7's protection of activity directed at forming and joining unions.

These particular policies specifically limiting discussion on wages have long come under NLRB scrutiny, however. What is new is that the NLRB then went deeper into employers' policies by attacking broad "confidentiality of business information" policies or "agreements." According to the NLRB, the intent of the policy or agreement is not relevant. Rather, the relevant factor is whether this language could be construed by an employee as limiting rights to discuss wages or working conditions with co-workers or union organizers.

The NLRB has also recently gone after "harassment" or related "bullying" policies, finding them too limiting on employees' free speech rights to make comments that might be considered "offensive" by other employees or managers. At times in non-union environments, employees who resent efforts by pro-union employees to get them to support the union, or supervisors who are the target of such efforts, will label them "harassment." This is the interpretation that gives rise to the NLRB's objection and why the NLRB will require such policies to be free of any hint that they might be used to limit "protected concerted activity," even if other employees or supervisors find it "harassing" in nature.

Most troublesome, the NLRB has cast its regulatory glance toward the "at-will" policies that mark the non-union workplace. Such policies typically state that the employment relationship may be ended for any reason and at any time, and define the employment relationship as specifically not "contractual" in nature. To the NLRB, such policies do not adequately inform employees that they have rights against discharge for unlawful reasons, or that if they become represented by a union, they will have collective bargaining rights.

The NLRB has made these rulings in actual cases brought before it in the traditional manner, as opposed to under its rule-making power, which draws more public attention. Only if such rulings are appealed to the U.S. Court of Appeals and reversed there does the NLRB back down.

Finally, after years in its "Rip Van Winkle" period, the NLRB may have found an effective way to insert itself into the non-union employment world. Given unions' continuing difficulties in organizing new employee bargaining units, the non-union sector and the policies employees there maintain may prove to be more fertile ground for activity by the NLRB than traditional union organizing efforts.

David Khorey is a labor lawyer and partner in the law firm of Varnum LLP. He can be reached at dekhorey@varnumlaw.com.

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