NLRB Proclaims Confidentiality Requirements Unlawful

November 2015
By Alan E. Seneczko

Having reviewed countless employee handbooks over the past 30+ years, I have found that it is not uncommon for employers to maintain policies that require employees to keep investigations of complaints of sexual harassment and other disciplinary matters confidential. Although the reasons for doing so often vary, most employers contend that this requirement is necessary due to the sensitivity of the subject matter and to protect the identity of potential witnesses. According to the NLRB, such generalized concerns are not enough to prevent such a policy from unlawfully infringing on employees’ right to discuss the terms and conditions of their employment with their fellow employees.

In The Boeing Company, 382 NLRB No. 195 (Aug. 27, 2015), the Board reviewed Boeing’s requirement that all employees involved in human resources investigations not discuss the matter with any other employee, except company officials conducting the investigation or their union representative. The Board found that such a blanket confidentiality policy violated Section 8(a)(1) and unlawfully interfered with employees’ Section 7 right to engage in concerted activity. In doing so, it rejected Boeing’s contention that the policy was necessary to protect witnesses, victims or employees under investigation from retaliation or harassment; to prevent the spread of unfounded rumors; to ensure the integrity of the investigation; and, to encourage employees with complaints to come forward. The Board disagreed, holding that an employer may only prohibit employee discussion of an investigation when its need for confidentiality with respect to that specific investigation outweighed employees’ Section 7 rights. In other words, in order to maintain such a requirement, an employer must be able to demonstrate legitimate concerns about witness intimidation or harassment, the destruction of evidence or other misconduct that might compromise the integrity of its investigation.

With this and all of its other recent decisions concerning employee handbook provisions, “no gossip” policies, interpersonal relations, and social media postings, the NLRB is continuing its aggressive and expanding effort to regulate all aspects of the workplace – and an employer’s ability to manage it, regardless of whether it is a union or non-union environment. Although the NLRB may not be knocking on your door today, it would be prudent to keep these concepts in mind the next time you are reviewing your employee handbook and other policies.

Questions? Please contact Attorney Alan E. Seneczko at (262) 560-9696, or email alseneczko@wesselssherman.com.

A Good Example of How Not to Handle a Discharge Case

August 2015
By Richard H. Wessels, Esq.

Every now and then we come across a really good case that gives us a road map for what not to do. A recent decision by a NLRB Administrative Law Judge illustrates this point. The case is Alternative Entertainment, Inc. It was issued July 9, 2015 and was tried just a couple of months ago in Grand Rapids, Michigan.

The fact pattern involved protected concerted activity. In other words, there was no union involved. We are seeing more and more of these types of cases being decided by the NLRB. The legal theory here is that, even though union activity is not involved, if an employee is engaging in some kind of group protest or acting with others, it is protected by the National Labor Relations Act (NLRA). A discharge would violate the NLRA in the same way that a discharge for union organizing activity would be an unfair labor practice.

In the Alternative Entertainment case, the employee was one of 77 field technicians who did installation work and service for a Dish Network contractor. The contractor made several changes in compensation policy. The changes were not well received. The employee began talking with others about the changes in compensation policy and, of course, this is pretty clearly protected concerted activity. 

After trial of the case, it took the ALJ little time to cut through the Company’s arguments. Here are some of the elements that led to the finding by the ALJ that the discharge was discriminatory and that the discharged employee was to be reinstated with full back pay: 

• Vague reason for the termination – “our relationship isn’t working out”. The Judge called the reason “vague and transparently pretextual.” 
• Suspicious timing – the Judge carefully analyzed Board case law and fundamental principle that “timing alone may suggest anti-union animus as a motivating factor in an employer’s action”. 
• No prior indication that the Company was dissatisfied with the employee’s work. 
• During the termination interview, the judge found that the Company ignored the employee’s inquiry for an explanation as to why he was discharged. 
• Departure from usual disciplinary procedure of providing a warning. 
• Several months before discharge the employee had broken Company sales records. 
• Although the employee’s sales had recently declined, they still exceeded goals set by the Company.

This case is well worth reading for any reader who might be interested. It is short by NLRB standards (16 pages). Here is a link to the case.

Questions? Call Attorney Dick Wessels of Wessels Sherman's St. Charles, Illinois office: (630) 377-1554 or email him at riwessels@wesselssherman.com.

Pro-Union NLRB Agenda: Stay Up to Date!!

July, 2015
By Richard H. Wessels, Esq.

Employers need to stay up-to-date on the NLRB’s pro-union agenda. Keep in mind –even though you are non-union and an unlikely union target, there still is a need to stay alert. A large percentage of NLRB cases these days involve “protected concerted activity”. In other words, there is no union involved at all. The NLRB is aggressive in asserting itself in non-union situations and stretching the law to create coverage for non-union employees! 
 
Here is a laundry list of areas where the NLRB is making it easier for unions who want to organize and for non-union employees who wish to challenge their employer: 

• Quickie elections – much shorter time frames.
• Specialty Healthcare types of cases – micro units which give a union almost any voting unit they want.
• E-mail policies – permits use of company e-mail for discussion of union activity.
• Social media policies – vulgar comments are protected activity!
• Employee handbooks – 30 page NLRB General Counsel memo perhaps more confusing than enlightening. The memorandum is, however, useful and must reading, if for no more than the modified rules in the Wendy’s settlement which the NLRB has ok’d.
• Rats, banners and street theater in the construction industry – tougher to get 8(b)(4) violations.
• Post-contract expiration obligations of the employer – reversal of long standing rule that check off does not survive contract expiration.
• Tougher independent contractor rules – easier for union to get independent contractors eligible to vote in union elections.
• Confidentiality agreements – can have a chilling effect on organizing and thus a ULP.
• Non-union arbitration agreements – NLRB says unlawful because it restricts collective action.
• Insubordinate conduct – previously unprotected activity such as profanity, disparagement and vulgarity is now protected.
• Joint employers – franchiser-franchisee relationship becomes joint-employer.
• Confidentiality of witness statements – casts doubt on ability to keep statements confidential in employment-related investigations.
• Wearing of buttons and stickers – employer attempts to control this are regularly struck down by the NLRB.
• Staffing company and host company employees in the same appropriate unit –NLRB has issued a notice to the public inviting briefs on a pending case. This is a clear signal that the NLRB is about to reverse existing case law that forbids inclusion in the same unit without the consent of both employers.

These are all complicated and fact-sensitive areas. As but one example, you might want to consider a disclaimer in your employee handbook to undercut a strained interpretation that it violates Section 7 rights. If you want to talk about any of this, contact me at (630) 377-1554 or by email at riwessels@wesselssherman.com.

NLRB Judge Finds Employer Committed an Unfair Labor Practice When it Fired Worker for Making Racist Remarks While Picketing

An Administrative Law Judge (ALJ) for the National Labor Relations Board recently held that an employee was engaging in “protected activity” when he made racist remarks toward African American replacement workers as they entered a plant to work during a labor dispute.  An arbitrator had ruled in a separate proceeding that the employer was justified in terminating this individual for racial harassment.  However, the Board’s ALJ determined that because the racially offensive comments were made during the course of union picketing at the plant’s entrance, in opposition to workers who were replacing the picketers, his actions were protected by federal labor law. 

During the labor dispute, as is often the case picketers regularly yelled and gestured at the replacement workers as they entered and departed from working in the plant.  After vans carrying several African American replacement workers passed through the picket line, the employee in question made the following racially offensive remarks: “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that?  I smell fried chicken and watermelon.”  Based on these comments, the employer determined that the employee violated its harassment policy and terminated the employee.  The union grieved the termination, and an arbitrator sided with the employer, finding that there was just cause to terminate the employee.

In separate proceedings before the NLRB, however, an ALJ determined that the employer acted unlawfully in terminating this employee for making these racial remarks.  According to the ALJ’s decision, an employer can only deny reinstatement to a picketer if the misconduct “may reasonably tend to coerce or intimidate employees in the rights protected under the Act,” or if the employee’s actions raised a reasonable likelihood of an imminent physical confrontation.  The ALJ determined that, although reprehensible, the employee’s actions did not meet either of these standards. 

The ALJ indicated, however, that this highly protective standard for behavior on a picket line does not apply to behavior in the everyday workplace, such as on the shop floor.  Therefore, this decision does not mean that an employer would have to put up with racist comments in the workplace.  In fact, an employer has an obligation to appropriately respond to these sorts of comments, which could create a racially hostile workplace.  Under this ALJ decision, however, the employer would find itself in a Catch-22: if it terminates the picketing employee, the NLRB says it violates labor law; however, if it takes no action against the employee, it could face a race harassment claim.

Questions? Contact the attorneys in Wessels Sherman’s Minneapolis office at (952) 746-1700.