NLRB notice requirement

Looks like you’re not going to have to put up that pro-union poster after all. A Washington, DC federal appeals court has struck down the National Labor Relations Board’s bid to require employers to put up a special notice that outlines workers’ rights to organize.  

The proposal’s been a bone of contention between business groups and the Labor Board since it was first introduced in 2010. The notice would have included language explaining workers’ rights to form unions, strike and bargain collectively.

Failure to post the notice would have been considered an unfair labor practice.

The National Association of Manufacturers challenged the NLRB proposal, saying the agency had over-reached its powers.

In March 2012, a federal district could judge allowed the rule to stand, but stripped the  of its ability to punish employers who didn’t post the notice.

That wasn’t enough for the NAM, however, which appealed the decision. Last April, the DC appeals court issued an injunction delaying the enforcement of the post rule until the vase could be heard.

So May 7, the court ruled that under the First Amendment, employers have just as much right to not disseminate views they didn’t support as they do to express their own views. Thus, ordering companies to post the NLRB notice would violate the law.

Fittingly enough, the DC appeals court was the same authority that that ruled President Obama’s recess appointments to the NLRB were unconstitutional,

In April, the president nominated three members — two Republicans and a Democrat — but no action’s been taken on the appointments yet.

Some other recent NLRB developments:

Confidentiality in workplace investigations

Last July, the NLRB ruled that a blanket approach to confidentiality during workplace investigations violated labor law. But a recent Advice Memorandum softens that stance a bit.

The case involved a company called Verso Paper. Its confidentiality policy read:

[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 ensure 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.”

The board said that policy was overly broad — but, in a reasonably rare case of offering an employer a way out of its dilemma, suggested that the policy would be acceptable if the last two sentences were edited to read:

[Verso] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence.  If  [Verso] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

In other words, the confidentiality question can be handled on a case-by-case basis — which gives employers some welcome leeway in handling in-house investigations.

At-will policies

You’ll recall that last year, the NLRB came out strong against at-will disclaimers in company handbooks.

In the first case, an administrative law judge ruled that the American Red Cross Arizona Blood Services Region violated labor law because of a handbook provision that said, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”

Those conditions could be interpreted to mean the employee was barred from union organizing activities, the ALJ said — because joining a union would change the worker’s at-will status.

Around the same time as the Red Cross case, NLRB acting general counsel Lafe Solomon issued a complaint against Hyatt Hotels Corp., saying the section concerning employees’ at-will status was overly broad.

At issue were the following statements:

  • I understand that my employment is “at will.”
  • I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt’s Executive Vice President/Chief Operating Officer or Hyatt’s President.
  • The sole exception to [Hyatt’s ability to modify or delete policies] is the at-will status of my employment, which can only be changed in a writing signed by me and either Hyatt’s Executive Vice President/Chief Operating Officer or Hyatt’s President.

Again, those statements could be interpreted as a tacit ban on organizing activities on the part of employees, the NLRB said.

But in a recently released Advice Memo, which involved Windsor Day Care Centers, the NLRB examined the company’s Statement of At-Will Employment Status, which read as follows:

Employment with the Company is at-will which means the employment relationship may be terminated with or without cause and with or without notice at any time by you or the Company. In addition, the Company may alter an employee’s position, duties, title or compensation at any time, with or without notice and with or without cause. Nothing in this Handbook or in any document or statement and nothing implied from any course of conduct shall limit the Company’s or employee’s right to terminate employment at-will. Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.

The NLRB opined that the bold-face sentences above didn’t violate labor law, because it didn’t bar employees from exercizing their right to change their employment status as outlined in the National Labor Relations Act.

The takeaway? Pretty much the same as above — the NLRB is going to judge each at-will policy on a case-to-case basis. Better make sure your policy doesn’t contain language that could be construed as limiting employee options under the NLRA.

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