Introduction
I recently prepared a general release for a client who was offering severance to a sales employee.I included in the release "any claims arising under the National Labor Relations Act (NLRA)."The client reminded me that the employee was not in the union so that I should strike the clause.
The client seemed genuinely surprised when I explained that even non-union employees are protected by the NLRA.More specifically, like their union compatriots, non-union employees have a right under Section 7 of the NLRA to engage in activity for their "mutual aid or protection."In other words, non-union employees have a right to engage in "concerted activity."
Moreover, the NLRB has interpreted this right broadly.Some of these interpretations are disquieting, if not disturbing.
This article addresses five of the more salient Section 7 rights enjoyed by non-union employees.
1.Right Of Employees To Discuss Terms And Conditions Of Employment
The NLRB has held that, in order for employees to organize, they need to be able to discuss the terms and conditions of their employment.Consequently, employees generally have the right to discuss among themselves the terms and conditions of their employment.
This includes what they are paid.Accordingly, an employer cannot prohibit employees (union or non-union) from discussing their wages.See NLRB v. Main St. Terrace Care Ctr, 218 F.3d 531 (6th Cir. 2000).
For this reason, a written rule or oral command that employees not discuss their wages or salaries is unlawful.Many employee handbooks still contain problematic language on this issue.
The right of employees to discuss the terms and conditions of their employment is not limited to compensation.Another example involves harassment and discrimination.
InPhoenix Transit Sys., 2002 N.L.R.B. LEXIS 170 (2002), the NLRB held that the employer violated the NLRA by maintaining a confidentiality rule prohibiting employees from discussing their sexual harassment complaints among themselves. While this case involved unionized employees, its analysis is equally apposite to non-union employees.
This does not mean that employers should not counsel employees to keep confidential allegations of harassment or discrimination.To the contrary, employers can and should inform employees of the importance of confidentiality.
However, there is a real risk if the employer makes an adverse employment decision based on the employee's failure to comply with the employer's instructions.However, in these circumstances, the employer is restricted by more than just Section 7 of the NLRA.
Title VII and our other EEO laws generally prohibit employers from taking adverse action against employees for expressing their concerns about discrimination or harassment. This would include most discussions between and among employees about discrimination or harassment.
Of course, the right of employees to talk among themselves about the terms and conditions of their employment is not absolute.For example, if an employee has access to confidential information about the salaries of other employees, they can be restricted from disclosing that confidential information.
Moreover, an employer also has a right to maintain order in its workplace.Accordingly, the NLRB has held that communications which are "flagrant, violent or extreme" are not protected. United Cable Television Corp., 299 NLRB 139 (1990)
The important point is that discussions regarding terms and conditions of employment are presumptively protected.The burden is on the employer to show that the protections have been forfeited either in terms of content or with regard to how expressed.
2.Right Of Employees To Trash Their Employer To Non-Employees
Since the NLRA generally was enacted to protect the right of employees to form unions, it is not entirely surprising that it also protects the kinds of conversations among employees which may be preliminary to organizational activity.What is more surprising is that the NLRB has held that this right covers conversations with non-employees.
For example, the NLRB has held that employees may have a right to complain to the employer's customers. See, e.g., Greenwood Trucking, Inc., 283 N.L.R.B. 789 (1987) (right of employees to discuss with customers concerns about the terms and conditions of their employment).
The Board even has found protected employee complaints to the media. In Allstate Ins. Co., 332 N.L.R.B. 759 (2000),the NLRB held unlawful an employer's disciplinary warning of an employee for talking with Fortune magazine about concerns regarding an Allstate employment program affecting her and other similarly-situated employees.
Accordingly, an employer rule which prohibits absolutely employees from talking with customers, the media or the like about the terms and conditions of their employment very well may run afoul of the NLRA.The same is true of an escalation procedure which requires that work-related complaints be reported to the employer and punishes employees for not abiding by the procedure.Kinder-Care Learning Ctr., Inc., 299 N.L.R.B. 1171 (1990).
This does not mean that employers must be silent when it comes to communications with third parties.For example, an employer obviously can and should establish a complaint procedure for employees to express concerns about the terms and conditions of their employment.What the employer cannot do is punish or threaten to punish employees who engage in protected concerted activity rather than using it.
Similarly, an employer can and should let employees know that they should refer media inquiries to a designated person or department and that they are not permitted to speak on behalf of the employer. What the employer needs to be careful not to do is tell employees that any contact which they may have with the media is per se prohibited.
3.Right To Engage In A Work Stoppage
Most of the strikes covered in the popular media involve unions.However, the fact remains that non-union employees also have the right to strike and engage in other work stoppages.
An employer violates the NLRA if it discharges or otherwise takes disciplinary action against a non-union employee for organizing or implementing a collective walkout to protest working conditions.NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).Moreover, an individual walkout may be protected, if it is considered concerted activity.
Generally speaking, to be considered concerted activity, "[i]t is sufficient that the employee intends or contemplates, as an end result, group activity which will also benefit some other employees. . . . 'Talk looking toward group action is protected'; mere griping is not."JCR Hotel Inc. v. NLRB, 342 F.3d 837, 840 (8th Cir. 2003) (citations omitted).
Under most union contracts, the union waives this right on behalf of its members.No comparable waiver exists in non-union settings. Accordingly, and ironically, the right to strike is often greater in the non-union context.
For this reason, an employer rule in a non-union setting which prohibits work stoppages or other disruptions runs afoul of the NLRA.See Labor Ready Inc., 331 N.L.R.B. 1656 (2000) (finding overbroad and unlawful an employer rule providing "employees who walk off the job will be discharged").
This does not mean that employers can do nothing in the face of a walk out by non-union employees.As with striking union workers, an employer can replace, temporarily or permanently, non-union workers who walk off the job.
Moreover, not all work stoppages are protected.For example, partial strikes in which employees continue working on their own terms generally are not protected.Vencare Ancillary Services, Inc. v. NLRB, No. 01-2165, 2003 U.S. App. LEXIS 24883 (6th Cir. 2003).
These exceptions notwithstanding, employers need to be careful when terminating, or threatening to terminate, non-union employees who refuse to work.Their refusal may carry with it some legal protections.
4.Right Not To Cross Picket Lines
Employees have a right not only to engage in work stoppages but also to honor picket lines set up by other employees.Again, union and non-union employees alike have this statutory right.
To quote the NLRB:"An employee who honors a lawful picket line is engaged in protected activity without regard to whether or not he [or she] is a member of the picketing labor organization or is merely sympathetic to the objectives of the picket line."Bristol Convalescent Home, Inc., 293 N.L.R.B. 625 (1989).
When it comes to crossing picket lines, the dispositive factor is not whether the employee honoring the picket line is represented by a union but rather whether the picket line itself is lawful.If there is a lawful picket, an employee cannot be disciplined or discharged for honoring it.
Again, however, the employer is not without legal recourse.An employer generally can replace, temporarily or permanently, an employee who refuses to cross a picket line.
5.Right To Be Abusive
At times, many of us joke that there are some employees who seem to think that abusing their supervisor is part of their job description.The joke within the joke is that such abuse may be legally protected.
In 1966, in Linn v. United Plant Guards, 383 U.S. 53 (1966), the United States Supreme Court held generally that campaign propaganda preceding a union election does not lose its statutory protection simply because it includes "intemperate, abusive and inaccurate statements."Since then, the NLRB has struck down, as unlawfully inhibiting protected employee speech, employer rules prohibiting abusive and/or threatening language.
For example, see Flamingo v. Hilton-Lauglin, 330 N.L.R.B. 287 (1999), where the Board struck down a rule prohibiting the use of "loud, abusive or foul language."The Board reasoned that such a rule reasonably could be interpreted as barring protected union organizing propaganda.
This line of cases was too much for one appellate court.In Adtranz ABB Daimler v. NLRB,253 F.3d 19 (D.C. Cir. 2001), the Court of Appeals for the D.C. Circuit reversed the NLRB's holding unlawful the employer's rule prohibiting the use of "abusive or threatening language to anyone on company premises."
The Court of Appeals rejected the NLRB's rationale that such a rule has the unrealized potential to chill protected activity.To the contrary, the Court stated:"In the simplest terms, it is preposterous that employees are incapable of organizing a union or exercising their statutory rights under the NLRA without resort to abusive or threatening language."
Notwithstanding Adtranz, the NLRB, or at least some administrative law judges, continue to scrutinize closely employer prohibitions in this area.See, e.g., Northern Dist., Inc. 2002 N.L.R.B. LEXIS 192 (2002) (McCarrick, ALJ).
This does not mean that employers should abandon their rules prohibiting abusive and/or threatening language.What it does mean is that employers need to recognize that these rules could be challenged successfully before the NLRB as overbroad and be prepared to appeal to a more reasonable appellate court.Employers can minimize this risk if they apply such rules only to employees who engage in objectively inappropriate conduct.
Published April 1, 2004.
