As mentioned in my March 29, 2012 blog entry, even non-union employers are subject to some of the provisions of the National Labor Relations Act (NLRA). One relevant provision is Section 7. Section 7 provides, among other things, that all employees, whether union or not, have the right to engage in “concerted activities for the purpose of” “mutual aid or protection.” The National Labor Relations Board interprets this language very broadly. This interpretation has resulted in the Board recently issuing decisions determining that commonplace—and common sense—employer policies have a “chilling effect” on employees’ Section 7 rights. That means, according to the Board, the policies violate the NLRA. The following are a few examples of policies that the Board recently found “chilled” Section 7 rights.

Banner Health System (July 30, 2012)

Banner Health System had a policy prohibiting employees who made complaints to management from discussing the matter with co-workers until management had completed investigation of the complaint. The Board found that this policy could chill employees’ Section 7 rights, and that the employer’s generalized concern with protecting the integrity of its investigations was not sufficient to overcome the concern over chilling employee rights.

Costco Wholesale Corp. (September 7, 2012)

Costco had a policy prohibiting employees from electronically posting statements that damaged Costco or that defamed or damaged any other person’s reputation. The Board found that the prohibited conduct encompassed concerted communications protesting the employer’s treatment of its employees and that the policy did not expressly exclude protected communication from its reach. Therefore, the policy violated the NLRA. The Board did make reference to policies prohibiting malicious, abusive or unlawful conduct as the kinds of policies that would likely not violate the NLRA.

Flex Frac Logistics (September 11, 2012)

Flex Frac Logistics required its employees to sign an agreement that they would not disclose “confidential information” to individuals outside the company, and that such disclosure could lead to termination. Confidential information included personnel information. The Board concluded that employees could reasonably believe that the policy prohibited them from discussing wages or other terms and conditions of employment with non-employees, such as union representatives—conduct protected by the NLRA. The Board therefore determined that the language in the agreement chilled Section 7 rights and violated the NLRA.

Karl Knauz Motors, Inc. (September 28, 2012)

Karl Knauz Motors issued a statement that it expected employees to be courteous, polite and friendly to customers, vendors, suppliers and other employees, and to not be disrespectful or use profanity or other language that injured the image or reputation of the company. The Board found that the prohibition on “disrespectful” conduct and “language that injures the image or reputation” of the company could encompass activity protected by Section 7. It determined that the policy violated the NLRA.

Bottom Line

In light of the National Labor Relations Board’s recent decisions, employers should carefully review policies that govern communication by and between employees and revamp, or get rid of altogether, those policies that could be construed to “chill” employees’ Section 7 rights.

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