May 2, 2014

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As seen in the South Carolina Bar’s Employment & Labor Law Newsletter, May 2014

Introduction to the National Labor Relations Act
The National Labor Relations Act (NLRA), among other things, grants employees the right to unionize, collectively bargain and engage in concerted activity for their mutual aid and protection.  See 29 U.S.C. 157. These rights are commonly collectively referred to as “Section 7 rights.” Foremost among these Section 7 rights is the right to discuss the terms and conditions of employment, including wages.

The NLRA goes a step further and prohibits employers from interfering with, restraining or coercing employees from exercising their Section 7 rights.  See 29 U.S.C. 158(a)(1). Any employer violating this prohibition is said to have committed an unfair labor practice. Id. Finally, the NLRA created the National Labor Relations Board (NLRB), the federal agency tasked with enforcing the NLRA.  See 29 U.S.C. 153(a).

Oftentimes, non-unionized employers assume that the NLRA only applies to the unionized workplace. This is simply not true as the NLRA applies equally to the unionized and non-unionized workplace. In fact, the NLRB has increasingly pursued enforcement actions against non-unionized employers as the rate of private sector unionization has decreased. Accordingly, the NLRA has recently had and will continue to have an impact on South Carolina employers and lawyers alike.

Workplace policies and the NLRA
In a landmark 1998 decision, Lafayette Park Hotel, the NLRB held that it is an unfair labor practice to adopt and maintain workplace rules that chill employees’ exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F. 3d 52 (D.C. Cir. 1999). An equally important decision, Lutheran Heritage Village,expanded on Lafayette Park Hotel and announced that it is an unfair labor practice to adopt a workplace rule that can reasonably be read to restrict or prohibit the exercise of Section 7 rights. See Lutheran Heritage Village, 343 NLRB 646 (2004). Functionally, these two decisions mean that an employer cannot promulgate a rule that employees could reasonably read to restrict them from discussing the terms and conditions of their employment.

The NLRB has used these two decisions to strike down seemingly innocuous workplace rules designed to protect confidential information, prohibit disrespectful employee conduct and promote a cordial workplace. A recent 2013 NLRB decision, Laurus Technical Institute, is quite instructive on the NLRB’s approach.

The case involved an employer, Laurus, who adopted a no-gossip policy. Under this policy employees faced discipline for, among other things:

  1. talking about a coworker’s professional life without that coworker’s supervisor being present;
  2. making negative, untrue, disparaging comments or criticisms about a coworker; or
  3. creating, sharing or repeating information that might injure a coworker’s professional reputation or credibility.

Henderson, an employee at Laurus, began discussing several topics with her coworkers during working hours. Among these were (i) her concerns regarding Laurus’ recent unannounced firings and internal grievance handling procedure, (ii) favoritism by Laurus’ management and staff, and (iii) other employers that might be hiring. Laurus determined that Henderson’s behavior constituted a violation of the no-gossip policy and decided to terminate her.

The NLRB held that the no-gossip policy was overly broad and violated employees’ Section 7 rights.  In doing so, the NLRB found that the no-gossip policy could be read to “prohibit virtually all communications about anyone, including the company or its managers.”

Social media and the NLRA
The NLRB has taken the same aggressive approach demonstrated in Laurus Technical Institute in cases involving workplace social media policies.  In fact, the NLRB issued Operating Memorandum 12-59 on May 30, 2012 (the “Memo”) as a guide for both unionized and non-unionized employers.

The Memo summarizes seven cases illustrative of the NLRB’s general approach to workplace policies.  In six of those cases, the NRLB struck down the employers’ social media policies.   This, by itself, is not quite remarkable.  However, the type of policies struck down is quite remarkable. These included the following:

  1. a policy encouraging employees to secure permission from their employer prior to sharing information about the company online,
  2. a policy requiring employees to carefully consider whether to friend co-workers, and
  3. a policy warning employees from picking fights online.

Crafting workplace policies with the NLRA in mind
Although the NLRB has taken an aggressive approach to enforcing the NLRA, it is possible to craft workplace policies that do not violate the NLRA. Several best practices for dealing with the NLRA have emerged from the case law. First, avoid having broad, vague or ambiguous policies. Second, narrowly tailor or define prohibited conduct.  Third, disclaim any intent to restrict Section 7 rights. Fourth, and most important, keep abreast of case law to see how the NLRB treats certain types of workplace policies. Although these best practices in no way guarantee compliance with the NLRA, they do go a long way in understanding the NLRB’s enforcement approach.