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The AR Group

Employee Union Rights ? Concerns for Non-Union Employers

By Julie Morris

It?s important for employers to first understand that the National Labor Relations Board (NLRB) administers and enforces the National Labor Relations Act (NLRA). And that, while the NLRA offers protections to union employees, it also protects all private-sector employees.

Over the years, labor union membership has witnessed a steady decline, bringing with it an apparent loss in influence by the NLRB. ?With union activity on the decline, most employee issues have manifested in the form of Equal Employment Opportunity (EEO) concerns and employers have focused their time and energies addressing either state or federal Department of Labor inquiries or federal EEO investigations. ?However, in a number of recent decisions the NLRB appears to be expanding its efforts to pursue violations of the NLRA against non-union employers.? In fact, the NLRB recently launched a web site aimed at educating non-union employees about their rights under the NLRA. ?Consequently, generally accepted policies have been found by the NLRB to violate employees? rights under the NLRA.

One such policy that the NLRA took issue with was the time honored ?at-will? employment statement. ?The ?at-will? employment doctrine has long been practiced by employers in most non-unionized settings without the threat of legal liability and effectively means that employment can be terminated by any party at any time and for any reason, or for no reason at all. ?However, a ruling in April 2012 by the NLRB? involving the American Red Cross resulted in a finding that that a written ?at-will? employment policy violated a Section of the NLRA by requiring employees to ??agree that the at-will employment relationship cannot be amended, modified or altered in any way.? ?The ruling caused an uproar because it appeared to signal a breakdown of the employment ?at-will? doctrine. ?After all, many if not most employers have similar language in their offer letters, employee handbooks, and related policy documents.

The American Red Cross ruling was narrowed on October 31, 2012 when the NLRB issued advice memos. ?Specifically, the NLRB clarified that the focus of the inquiry relates to the need to protect employees? First Amendment rights particularly when employer requirements “reasonably tend to chill employees in the exercise of their Section 7 rights.”

While this ?chill factor? seems to be a broad qualifier, the NLRB provided an analytical framework involving a two-step inquiry designed to aide in determining if a policy has such a chilling affect:

1)?? A policy is unlawful if it explicitly restricts collective bargaining and other protected activities; or

2)?? If the policy does not explicitly restrict protected activities, it is still in violation if:

a. employees would reasonably interpret the language as prohibiting collective bargaining and other protected activities;

b. the policy was promulgated in response to union activity; or

c. the policy has been applied to restrict the exercise of the employees? rights to collective bargaining and other protected activities.

As increased focus on the non-union workplace looks like it’s here to stay, and in light of the clarifications provided in the advice memos, at least one thing is clear ? employers need to review their policies.

Smart Tip: ?In an increasingly complex regulatory environment, employers along with their counsel should be proactive when auditing policies and procedures that currently present a substantial risk for union and non-union businesses alike.? Particularly any ?at will? employment or similar language commonly found in an employee handbook. ?Careful crafting will help to ensure policies do not run afoul of the NLRA?s decision and are consistent with the NLRB?s direction.