The Press-Enterprise - April 20, 2014.

The National Labor Relations Board is more closely scrutinizing the actions of private, nonunion employers on behalf of nonunion, private sector employees. BB&K’s Roger Crawford explains why, and how these employers can avoid violating the National Labor Relations Act.

The National Labor Relations Act manages relations between unions and private workplace management. Recently, the National Labor Relations Board has been imposing the NLRA more frequently on private non-union employers on behalf of nonunion, private sector employees.

This is most likely to happen after the employer has terminated or otherwise disciplined an employee for conduct that could be considered concerted and protected. The NLRB's increased attention to the nonunionized sector may be the result of significantly declining union membership in the United States. Ignoring this trend can lead to substantial penalties and expense for a private, nonunion employer.

Section 7 of the NLRA protects traditional union organizing, but it also protects any time nonunion (as well as union) employees participate in "concerted activity," such as having discussions with fellow employees about pay or complaining about working conditions.

Concerted is defined as two or more employees working together or "in concert," and this broad interpretation gives nonunion employers the most trouble when it comes to NLRA claims. For a concerted activity to be protected under the NLRA, it generally must center on a controversy involving the terms and conditions of employment. Therefore, if employees take action as a group to complain about company policies, their actions may be protected. Additionally, if an employee acts alone, his conduct may be considered concerted activity, protected by the NLRA, if he is acting on behalf of other employees.

The labor board scrutinizes all types of company policies at nonunion workplaces resulting from claims, including confidentiality, fraternization, statements of conduct, off-duty access, apparel and appearance, disloyalty, civility, media contact and employment-at-will.

Pay policies also can be the basis for NLRA claims. Since wage issues are a frequent objective of employee organizing, rules prohibiting wage discussions have been interpreted to be unlawful interference with the right of employees to engage in concerted activity.

With the pervasiveness of technology in society, many employers now have social media policies in their handbooks and this has resulted in NLRA claims. The mere monitoring of employee use of social media could be deemed a violation of the NLRA if it can be construed as the unlawful surveillance of an employee's exercise of her concerted and protected rights. The board will, however, support an employer's social media policies that clarify and limit their scope by including examples of clearly illegal or unprotected conduct.

Not all employee activities, of course, are protected under the NLRA, including intermittent strikes and work slowdowns; comments to third parties that are critical of the employer but make no reference to any labor controversy or term and condition of employment; concerns about customer satisfaction or product quality; and social issues that have no more than a tangential relationship to work.

Employees who complain about their own personal employment problems (as opposed to voicing concerns about how policies affect the workforce) generally are not covered under the NLRA's protections either.

How can nonunion employers avoid violations of the Labor Act?

Start by reviewing and revising your current policies and handbook provisions to make them compliant. When it comes to disciplining employees, consider whether their conduct constitutes protected concerted activity. Train your supervisors, managers and other decision makers on the issue of protected concerted activity. Adopt a lawful disclaimer in the company handbook that specifically addresses protected concerted activity.

Think about conducting periodic reviews of personnel rules to establish compliance with the most recent NLRB rulings and other changes to legal requirements.

* This article first appeared in The Press-Enterprise on Apr. 19, 2014. Republished with permission.