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Davis Brown Employment and Labor Law Blog

Employment Law Blog: NLRB who? Why do I care if I don't have a union? - April 29, 2013

Most non-union employers think that the National Labor Relations Act is not applicable to their work force. Unfortunately, if that is what you think, your local NLRB office will be happy to point out how wrong you are.  As we have seen with the NLRB’s stance on social media, Section 7 regarding concerted activity is broad in scope and ever present.  The NLRB has a comprehensive reach and can affect work places regardless of size or any active union presence at the employer. 

The primary issue here is the ability to engage in “concerted activity.”  Concerted activity is traditionally viewed as the employee’s right to discuss burdensome workplace conditions and to meet with others to organize to form a union or to join an existing union.  However, in the modern age with Facebook posts, critical blogs and a wide array of other items, concerted activity has taken on a much broader role.  Blogging policies, social media issues and similar items all have their place in the concerted activity arena.  However, employers sometimes forget that their policies regarding internal face-to-face communications can also create problems with the NLRB and rule compliance.

It is not uncommon for employers to discipline employees who have been a problem.  A pot-stirrer or someone who is constantly complaining and just not playing well with others can be a detriment to everyone.  That description of “not being a team player” can sometimes run afoul of the concerted activity rules.  If not being a team player means you are critical of management and the NLRB determines that you treated this employee differently or terminated him/her because you were tired of hearing the complaints you could be in violation of the law. 

Like social media, there are other areas where it can be difficult to balance concerted activity requirements with your other obligations under rules such as though promulgated by the EEOC.  If you receive a complaint regarding employee misconduct, such as sexual harassment in the work place, typically you are going to be required to interview employees and to engage in an investigation.  In doing so, many employers tell those people who are interviewed that they cannot reveal the information obtained in the interview or discuss the investigative process in order to protect the confidentiality of those involved and avoid potential retaliation.  However, strict requirements of this type run directly contrary to the requirements of the NLRB as was set forth in the January 29, 2013 memorandum from Barry J. Kearney, General Counsel, for the NLRB.  

The case referenced in the memo involves Verso Paper, Case 30-CA-089350.  The matter was submitted for advice to the associate general counsel regarding a strict prohibition by Verso regarding discussing potential investigations.  Verso had an employee conduct provision which stated:

“Verso has a compelling interest in protecting the integrity of its investigations.  In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to insure that testimony is not fabricated, and to prevent a cover up.  To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence.  If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

It was the determination of Mr. Kearney, Associate General Counsel, that this rule was over broad and that no employer can “maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.”  Mr. Kearney goes on to state that such a work rule could “reasonably chill employees in the exercise of their Section 7 rights."  Simply stated, employees have an inherent right to discuss discipline and disciplinary investigations.

This is a complex issue for employers because Verso was working to do the right thing.  Employers do have a compelling interest in protecting the integrity of the investigation, preventing further harassment, intimidation, or retaliation.  In fact, most of us have probably had the experience of a witness who chooses not to come forward or comes forward very late because he/she was fearful of potential retaliation and lack of confidentiality.  This memo, which was written on January 29, (but not made public until April 19, 2013) places the employer squarely in the middle of conflicting EEOC requirements, common sense, and the NLRB.  

One possible methodology would be to assess each investigation individually and apply confidentiality rules only where there has been a direct threat of retaliation.  This would be a flexible assessment open to interpretation and what you view as being retaliatory might not be something the NLRB reviews as retaliatory.  

Another potential way to address this matter would be to use language which has more inherent flexibility, such as requesting, because of the following reasons, i.e., intimidation and retaliation, that employees keep this matter confidential, but not discipline or terminate employees if confidentiality has been broken.  Unfortunately, the imperatives of various agencies often clash, leaving us as the employers in the middle to try to figure out which rule to follow today.