Part II: Is Your Handbook NLRA-Compliant?
By Mary Funk
The National Labor Relations Board (NLRB) has stepped up enforcement is directed ever more at companies outside of the traditional union setting. When investigating an allegation that a company has violated employees' Section 7 rights to engage in concerted protected activity, the Board will focus a considerable amount of time and attention on the company's handbook, even if no handbook provision is directly at issue in the complaint.
Section 7 of the NLRA states: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargaining collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities…." The Board has consistently held that an employer violates Section 7 if its acts would "reasonably tend to chill" an employee's exercise of such rights.
Therefore, every employer needs to review its handbook to ensure compliance with the NLRA and that its policies do not "chill" the exercise of employees' rights. Handbooks can violate Section 7 simply by having overly broad policies, even if there is no evidence that the employer enforced the policy in a discriminatory manner. To assure compliance, a handbook CANNOT, by way of example only:
- Prohibit solicitation any time any place. Solicitation can only be prohibited during work time – not work hours. Employees can solicit others on their breaks or before or after their shift.
- Prohibit loitering anywhere on company property.
- Prohibit strikes or work stoppages.
- Prohibit employees from discussing the terms and conditions of employment with each other or with third parties, including but not limited to disciplinary actions and wage and salary information. Therefore, the Board will look very carefully at confidentiality rules and chain of command rules that would require an employee to go only through certain channels to assert a grievance or prohibit them from complaining to a third party.
- Prohibit someone from criticizing his or her supervisor or the company on Facebook. See our blog on February 15, 2011 concerning the AMR case.
- Prohibit employees from exercising their right to wear union insignia absent special circumstances.
Best practices to ensure your company's handbook is NLRA-compliant include:
- Having a member of your legal team at Nyemaster Goode review your handbook and other company policies to ensure they are not overly broad and do not restrict protected concerted activity.
- Implementing non-solicitation and non-distribution policies before any union organizing occurs.
- Enforcing all policies and rules even-handedly to avoid claims of disparate treatment.
- Providing examples in your handbook of unprotected conduct prohibited by your rules. It will make it easier to argue that the rule cannot reasonably be read to reach statutorily protected activity. For added insurance, you may even want to incorporate an express statement into the handbook that nothing contained in the handbook extends to activities that would be protected under the NLRA.
On May 17, 2011, Mary Funk presented a program on these topics to the Iowa Society of Healthcare Attorneys.