Investigations and National Labor Relations Act Concerns

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July 17, 2018


I. OVERVIEW OF NATIONAL LABOR RELATIONS ACT (NLRA)

A. NLRA Purpose

1. The purpose of the NLRA is to encourage the practice and procedure of collective bargaining by protecting the right of employees to:
a. Self-organize;
b. Designate union representatives of their own choosing;
c. Refrain from engaging in such activities;
2. Prescribe the legitimate rights of both employees and employers;
3. Provide orderly and peaceful procedures for preventing the interference by employees or employers with the legitimate rights of the other;
4. Protect the rights of individual employees in their relationships with labor organizations;
5. Proscribe unfair labor practices on the part of labor organizations and employers.

B. National Labor Relations Board (NLRB)

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1. Role of the NLRB
a. Federal agency that administers and enforces NLRA.
b. Has nearly exclusive jurisdiction to prosecute and adjudicate labor issues involving private sector employers.
c. Conducts representation elections.
d. Investigates and prosecutes unfair labor practices.
e. Promulgates rules and regulations involving NLRA.

C. Employee Rights Protected By the NLRA

1. Section 7 of the NLRA sets forth the activities that are protected.
2. Self-organize.
3. Form, join or assist labor organizations.
4. Bargain collectively through representatives of their own choosing.
5. Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
6. Refrain from any of the above rights.

D. Employer Unfair Labor Practices

1. Interfere, restrain or coerce employees in the exercise of their protected rights.
2. Dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.
3. Discriminate in regard to hiring or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.
4. Discharge or otherwise discriminate against an employee because he has filed an unfair labor practice charge or given testimony under the NLRA.
5. Fail to bargain collective with the representative of employees in good faith.

E. Union Unfair Labor Practices
1. Restrain or coerce employees in the exercise of their protected rights.
2. Restrain or coerce an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.
3. Cause or attempt to cause an employer to discriminate against an employee due to the employee’s exercise of his protected rights.
4. Refuse to bargain collectively with an employer in good faith.
5. Secondary boycotts.

F. Definition of Employer

1. Any person acting as an agent of an employer, directly or indirectly.

2. Excludes the U.S. government, any State or political subdivision thereof.

3. Commerce Requirement
a. Retailers: Gross annual volume of business of $500,000 or more. This includes employers in amusement industry, condominiums, casinos, home construction, hotels, restaurants and private clubs. Shopping centers and office buildings have lower threshold of $100,000 per year.
b. Non-retailers: Jurisdiction based on amount of goods sold or services provided by the employer out of state or purchased by the employer from out of state. Such outflow or inflow can be direct or indirect and pass through a third company such as a supplier. Jurisdiction is asserted when annual inflow or outflow is at least $50,000.
c. Channels of Interstate Commerce: $50,000 in gross annual volume.
d. Health Care Institutions: Gross annual volume of at least $250,000. Nursing homes and visiting nurses associations the minimum is $100,000.
e. Cultural and Educational Centers: The annual minimum is $1 million.

G. Definition of Employee

1. Any employee of a particular employer.
2. Excludes an individual employed as an agricultural laborer, in the domestic service of any family or person at his home, by his parent or spouse, as an independent contractor or as a supervisor.
3. The NLRB will not assert jurisdiction over employees of a religious organization who are involved in effectuating the religious purposes of the organization. However, the NLRB may assert jurisdiction over employees who work in the operations of a religious organization that does not have a religious character.

H. Definition of Supervisor

1. Any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them or to adjust their grievances, or effectively to recommend such action, if the individual does so with independent judgment as opposed to being of a routine or clerical nature.

2. “Assign” refers to “the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period) or giving significant overall duties, i.e. tasks, to an employee.”

3. “Direct” involves that the person direct and oversee an employee and “must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly.”

4. Independent Judgment
a. Generally, individual must “act or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data.”
b. A “judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective bargaining agreement.”
c. “The mere existence of company policies does not eliminate independent judgment from decision-making if the policies allow for discretionary choices.”

II. PROTECTED, CONCERTED ACTIVITY UNDER THE NLRA

A. It is an unfair labor practice under Section 8(a)(1) of the NLRA for an employer to “interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7 [of the NLRA].”

B. Because Section 7 gives employees the right to engage in concerted activities, independent of any effort to unionize, it also protects employees who are not represented by a union and applies to employees in non-union settings.

C. Section 8(a)(1) of the NLRA also prohibits employer conduct that “would reasonably intend to chill employees in their exercise of Section 7 rights.”

D. Generally, protected concerted activity requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.

E. “Concerted” activity is that which is engaged in with or on the authority of other employees as opposed to solely being done by and on behalf of the employee himself.

F. Such activity also includes situations when an individual employee seeks to initiate or to induce or to prepare for group action as well as an individual employee bringing truly group complaints to management’s attention.

G. Protected, concerted activity is that activity engaged in for employees’ mutual aid or protection.

H. “Mutual aid or protection” means the activity must be connected to the terms and conditions of employment.

I. Concerted Activities Examples
1. Peaceful economic strikes;
2. Sympathy strikes;
3. Filing or processing of grievances/complaints in concert;
4. Appeals to agencies, the public and filing of court actions;
5. Forming, joining or helping a union;
6. Speaking on behalf of another employee or employees;
7. Discussions concerning working conditions;
8. Protests of discrimination; or
9. Insisting on union representation at an employer’s investigatory interview.

J. Unprotected activities include those that are unlawful, violent, in breach of contract or indefensibly injurious to employer interests.

K. Activity that is not protected, even if concerted, include:
1. Disparaging employer’s product;
2. Release of employer’s confidential information/trade secrets;
3. Disrupting work;
4. Sit-down strikes;
5. Partial or intermittent strikes.

III. Weingarten Rights

A. The U.S. Supreme Court and the NLRB have ruled that employee insistence upon union representation at an employer’s investigatory interview, which the employee reasonably believes will result in disciplinary action, is protected concerted activity.

B. This right is known as an employee’s Weingarten rights, named after the leading case establishing the right.

C. Weingarten rights do not apply to unrepresented employees.

D. In addition, they do not apply to situations where the employee is not the subject of an investigation and the employer is not looking into any allegation of wrongdoing involving the employee.

E. Disciplining or discharging an employee for refusal to cooperate in an investigatory interview without union representation may violate the NLRA.

F. When the Right Arises
1. An employee has a right to have a union representative present at an investigatory interview, which the employee reasonably believes will result in disciplinary action.
2. An employee is not entitled to union representation at a meeting held solely for the purpose of informing the employee of, and acting upon, a previously made disciplinary action.
3. However, if the employer seeks facts or evidence in support of the action or attempts to have the employee admit to any alleged wrongdoing, then the employee has a right to union representation.
4. Generally, Weingarten rights do not apply to “such run-of-the-mill shopfloor conversations, as, for example, the giving of instructions or training or needed corrections of work techniques.”
5. The right belongs to the employee, not the union, and the union may not assert the right to represent the employee during the interview.
6. An employer has the initial burden of advising an employee of the nature and purpose of the meeting so that the employee is sufficiently informed as to whether he can or should exercise the right to union representation. Once this burden is satisfied, the burden shifts to the employee to request representation.
7. The right to representation arises only in situations where the employee requests representation.
8. Even an insincere or flippant request for union representation must be honored.
9. An employee’s question whether he should have a union representative present at the meeting is sufficient to trigger the right to representation.

G. Identity of Representative
1. An employee’s request for a specific union representative at the investigatory interview must be granted unless there are extenuating circumstances.
2. An employer is not required to postpone an interview because the requested union representative is absent, so long as another union representative is available at the time set for the interview.
3. The employee and union representative are entitled to find out what the meeting is about before the interview begins.
4. The employee is entitled to meet with and confer with a union representative before the interview begins.
5. If the interview date provides the employee ample opportunity to consult with a union representative, the employer may refuse to delay an interview. If, however, the employer insists that the interview occur immediately, the employer must allow the employee and the union representative time to confer privately before the interview.

H. Rights of Union Representative and Management
1. An employee’s exercise of his Weingarten right may not interfere with legitimate employer prerogatives.
2. Employers are entitled to conduct investigations and seek to compel employees to submit to questioning.
3. Union representatives cannot demand which management representatives should be present.
4. An employer is not obligated to bargain with any union representative who may be allowed to attend the investigatory interview.
5. Union representatives cannot disrupt the investigatory process by being verbally abusive, insulting, or demeaning to a manager or engage in desk pounding, obscenities, or being insubordinate.
6. An employee is only entitled to one union representative.
7. An employee has the right to advice and active assistance from the union representative.
8. An employer cannot limit union representative to a passive observer or prohibit the union representative from speaking.
9. Permissible extent of union representative participation lies somewhere between mandatory silence and adversarial confrontation.
10. The union representative may assist the employee by attempting to clarify facts or suggesting other employees who may have relevant knowledge.
11. The union representative cannot turn the meeting into an adversarial proceeding.
12. The union representative may not prevent the employer from questioning the employee, but can object to improper questions or harassing behavior.

IV. Interviewing Bargaining Unit Employees Regarding Concerted, Protected Activity

A. An employer’s coercive questioning of an employee about an employee’s protected, concerted activity can violate the NLRA. Interrogating employees as to union sympathy, union affiliation, or union activity may be unlawful.
B. The NLRB looks at two issues: (1) whether the questioning of the employee dealt protected, concerted activity; and (2) whether the questioning was coercive.
C. The Board’s general test for coercion is whether under all of the circumstances, the interrogation reasonably tends to restrain, coerce or interfere with an employee’s protected rights.
D. Factors that are considered, include, but are not limited to, the following:

1. Background of the questioning;
2. The position of the questioner within the employer’s hierarchy;
3. The place of questioning;
4. The method of questioning;
5. The nature of the information sought;
6. The truthfulness of the employee’s reply;
7. Whether the employer gave assurances against reprisal;
8. Whether the employer provided the employee with a reason for the questioning.

V. Interviewing Unit Employees in Preparation of Unfair Labor Practice Trial

A. The NLRB has carved out a limited privilege to interrogate employees regarding protected activity when the employer is investigating facts concerning issues raised in an unfair labor practice complaint to prepare of its defense at trial.
B. To minimize any coercive impact, the NLRB announced a number of safeguards.

These are familiarly known as the Johnnie’s Poultry safeguards.

C. Pursuant to these safeguards, an employer must:
1. Inform the employee of the purposes of the questioning;
2. Assure the employee that there will be no reprisals;
3. Obtain the employee’s voluntary participation in the interview;
4. Question the individual in an atmosphere free from union animus;
5. Avoid coercive questioning;
6. Only ask questions relevant to issues involved in the complaint;
7. Refrain from inquiring about the employee’s subjective state of mind;
8. Refrain from questions that otherwise interfere with the protected rights of employees.

VI. Disciplinary Rules for Failure to Cooperate in Interview/Interrogation

A. It is unclear whether the Johnnie’s Poultry safeguards are applicable to employer interrogations of employees in preparation of arbitration hearings or investigatory interviews of employees about plan rule violations.
B. However, the NLRB has held that the NLRA does not prohibit an employer from compelling employees to submit to questioning concerning employee misconduct when the employer’s inquiry is still in the investigatory phase and no final disciplinary action has been taken.
C. Rules imposing discipline for failure to cooperate in any investigation of company rules, policies, laws or regulations may be unlawful because they may be overbroad and impermissibly infringe on an employee’s protected rights.

VII. Confidentiality Restrictions

A. The NLRB has ruled that blanket, generalized rules/policies requiring employees to keep investigations confidential violates the NLRA because it interferes with an employee’s right to discuss discipline and terms and conditions of employment with other employees.
B. Confidentiality prohibitions, however, are not always unlawful.
C. The NLRB requires an individualized assessment into the need for a confidentiality rule on a case-by-case basis and any such rule must involve a legitimate business justification.

D. Examples of business justifications include, but are not limited to, the following:
1. Whether a witness needs protection;
2. Evidence is in danger of being destroyed;
3. Testimony is in danger of being fabricated;
4. Need to prevent a cover up.

E. These must be individualized assessments and cannot be used in general for all investigations.

F. The contours of this decision are still working themselves out.

VIII. Disclosure of Witness Statements

A. Since 1978, NLRB has held that employers are not required to provide unions with copies of witness statements due to concerns regarding coercion or intimidation of witnesses or a reluctance by employees to provide statements in the first place.
B. In December 2012, the NLRB reversed this precedent and required disclosure unless an employer can establish a legitimate and substantial confidentiality interest in protecting employee witness statements from disclosure.
C. Once such an interests is established, the employer must seek an accommodation with the union to protect its confidentiality interest.

IX. Investigations Involving Social Media Conduct

A. Definition of Concerted, Protected Activity

1. It is unlawful to discipline or discharge an employee for engaging in concerted, protected activity.

2. Elements of a violation:
a. Employee engaged in “concerted” activity;
b. Employer knew of the concerted nature of the activity;
c. The concerted activity was protected by the NLRA;
d. The discipline or discharge was motivated by the employee’s protected, concerted activity.

B. Hispanics United of Buffalo, Inc. (NLRB)
1. Employer discharged five employees for Facebook comments they wrote in response to a coworker’s criticism of their job performance under its rule against bullying and harassment.
2. NLRB ruled that the Facebook posts were concerted, protected activity.
3. Employer discharge based solely on the Facebook posts violated the NLRA.

C. Knauz BMW (NLRB)
1. Car dealership employee posted Facebook photo and commentary regarding an accident where a 13 year old boy caused damage to a vehicle with the saleswoman in the passenger seat.
2. ALJ ruled, and NLRB affirmed, that the posting was not protected, concerted activity because it was posted as a joke without any discussion with any other employee and had no connection to any of his terms and conditions of employment.
3. Termination for Facebook post found not to violate NLRA.

X. NLRB Scrutiny of Handbook Policies and Procedures

A. An employer violates the NLRA when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.

B. If a rule explicitly restricts Section 7 rights, it is unlawful.

C. If a rule does not do so, it is unlawful if:
1. Employees would reasonably construe the language to prohibit Section 7 activity;
2. The rule was promulgated in response to union activity; or
3. The rule has been applied to restrict the exercise of Section 7 rights.

D. The NLRB has been increasingly active in reviewing and striking down several common workplace rules and policies because they can reasonably tend to chill employees in the exercise of their Section 7 rights, including the right to discuss terms and conditions of employment with third parties and co-workers.

E. The NLRB has recently found the following policies unlawful:
1. Prohibiting employees from discussing private matters of members and other employees, including topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.
2. Stating that sensitive information such as membership, payroll, confidential, financial, credit card numbers, social security numbers, or employee personal health information may not be shared, transmitted, or stored for personal or public use without prior management approval
3. Prohibiting employees from sharing confidential information such as employees’ names, addresses, telephone numbers, and e-mail addresses
4. Prohibiting employees from electronically posting statements that damage the company or any person’s reputation
5. Providing a rule stating that no one should be disrespectful or use profanity or any other language that injures the image or reputation of the company

F. Careful drafting of work rules, as well as the inclusion of specific definitions and examples of prohibited conduct, may remedy the NLRB’s concerns.


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