Aggressive NLRB Has Surprises for HR

Date: November 14, 2011

Special from BLR's Advanced Employment Issues Symposium:  Unions are desperate, says attorney Kevin McCormick, because their numbers are down and many of the things they once promised workers (like safer workplaces) are now mandated by government agencies. The result? They're getting aggressive in new ways.

As an example of new union tactics, McCormick points to the nursing profession. Union organizers are creating focus groups of nurses, assembled behind one-way glass windows, to talk about their jobs and what makes them upset. The union then takes that information, and works for up to a year to lay the groundwork for an election. Then they pounce, and you have 38 days to try to rebut. (And NLRB proposes to cut that to less than 20 days, McCormick notes.)

McCormick, a partner at Whiteford, Taylor, and Preston LLP in Baltimore, Maryland offered his warning -- and his tips -- at BLR's Advanced Employment Issues Symposium, held recently Nashville, Tennessee.

NLRB Aggressive in Making Unionization Easier
The Employee Free Choice Act is dead, but the Obama administration and the unions are not giving up their efforts to make it easier to organize your workforce; they are going to try to carry out that mission through decision-making and rule-making, McCormick said.

Decision to Award Daily Compound Interest
For 50 years, NLRB awarded only simple interest, compounded quarterly, in unfair labor practice cases. Now, the NLRB has announced it will award compound interest on back pay awards, which will mean larger settlements, which in turn will encourage employees and their unions to file more unfair labor practice claims.

NLRB announced the change without rulemaking, and applied the decision to all pending and future cases.

New Posting Requirement
If an employer is found to have committed an unfair labor practice, and if they use intranets, websites and emails, in addition to posting the notice of the violation, employers will have to distribute that notice electronically to employees. Unions will use that, McCormick says.

NLRB is also intending to require posting a notice of employee rights, but McCormick noted that NLRB has postponed until January 31, 2012 the effective date of that requirement.

PCA in Social Media
We're seeing a dramatic increase in "protected concerted activity" (PCA) cases in the context of social media, says McCormick. So far, there's no brightline test, but NLRB did outline four preconditions for an employee's use of social media to qualify as PCA:

The social media activity must:

  • Involve the terms and conditions of employment.
  • Act as a "logical outgrowth" of earlier co-worker discussions about those terms and conditions
  • Be directed to or involve co-workers
  • Be intended to invite or induce co-workers to take action

Overly broad social media policies may also be illegal, McCormick adds.

What is Protected Concerted Activity?
Concerted Activity is any activity by individual employees who are united in pursuit of a common goal. The action must be engaged in, with, or on the authority of other employees.
Protected Concerted Activity is activity engaged in for employees' "mutual aid or protection." Such activity often includes employee efforts to improve working conditions and terms of employment, including health and safety issues, hiring practices, wages, and work assignments.

If one person complains, that's not PCA, says Mccormick. But if the person says "all of us are concerned ...," that probably is.

Keep in mind, says Mccormick:

  • An employer's retaliatory conduct against an employee because of the employee's PCA is illegal.
  • An employer's written policies that prohibit or restrain an employee from engaging in PCA can also be illegal in certain circumstances. 
  • Policies prohibiting employees from discussing wages or other terms and conditions of employment are a per se violation, McCormick says. If you do want a policy on confidential information, make it narrow, he advises. Mention business plans, customer lists, and other proprietary information, and then add "This is not intended and should not be construed to limit the exercise of rights under the NLRA.
  • During work time, you can expect employees to work, but you can't prohibit union talk during breaks or over lunch. 
  • If you allow girl Scout cookie ads and "firewood for sale" ads on the company bulletin board, you can't prohibit union postings.

Pre-Emptive Firing

NLRB is also finding violations when the employee in question has not discussed issues with co-workers yet. NLRB has found violations because an employer fired an employee "to be certain that she does not exercise her Section 7 rights" to discuss her concerns with co-workers. This is a new theory adopted by NLRB, Mccormick notes.

Coming up, McCormick's 7 steps for getting ready to fend off a union organizing drive, plus an introduction to a unique guidebook especially for small, or even one-person HR departments.

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