By Howard L. Mocerf
Section 7 of the National Labor Relations Act (NLRA) protects employees' rights to select or reject unions to represent them and to engage in or refrain from support for a union. However, it also protects employees from discipline for engaging in "concerted activities" for their "mutual aid or protection" wholly divorced from any union organizing. Employees who complain to their employer about wages, personnel policies or their supervisors are also protected by Section 7, even if there is no union at the company and the employees have no thoughts of bringing in a union.
This has been the law since the Wagner Act was first passed in 1935 and is nothing new. What has changed is the interpretation of protected, concerted activity by Lafe Solomon, the current acting general counsel of the National Labor Relations Board (NLRB), as applied to employer work rules and policies in a manner not previously taken by his predecessors or the NLRB under prior administrations. The general counsel is the NLRB's prosecutor. His policies determine whether an unfair labor practice charge filed by a union or an employee will be prosecuted to trial before an NLRB administrative law judge with appeal rights to the NLRB. While the general counsel's interpretation of Section 7 is not law, it determines whether an employer will have to defend a rule or policy in a formal proceeding with liability if the NLRB adopts Solomon's view.
Within the past year, Solomon has issued three reports summarizing a number of unfair labor charge cases involving nonunion employer policies concerning employee use of social media and other, more traditional employer rules and policies in which he has authorized the issuance of formal complaints leading to trial or dismissed charges based on his interpretation of Section 7. Employer rules or policies that expressly restrict Section 7 rights have always been unlawful. Rules or policies that do not expressly restrict Section 7 rights, but that have been promulgated in response to employee union activity or that have been applied selectively to employee union activity, have always been unlawful. What is new is Solomon's interpretation of rules or policies that do not expressly restrict Section 7 activity, but which employees "could reasonably construe" to prohibit Section 7 activity. He has applied "could reasonably construe" liberally such that if the rule or policy might chill Section 7 activity, he considers it unlawful. Examples from his most report illustrate this.
•An employer social media policy that directed employees, "Don't pick fights," and that reminded them to communicate in a "professional tone" without making "objectionable or inflammatory" comments such as ethnic slurs or comments that might be viewed as defaming the employer's customers, suppliers or competitors, was considered unlawful because "discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics or religion." In absence of clarification of what is "objectionable or inflammatory," Solomon concluded that "employees would reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism."
•An employer rule prohibiting employees from posting information about the employer that was "material nonpublic information" or "confidential or propriety" was deemed unlawful because, Solomon said, it was so vague that employees would reasonably understand to prevent disclosures about their working conditions and "confidential" information would be understood to cover employees' employment conditions, unless clarified.
However, the extent to which Solomon seems intent on expanding Section 7 rights into the nonunion employer-employee relationship is not limited to traditional work rules and policies and newer ones, like social media policies. Recently, Solomon authorized two complaints challenging language in employee handbooks that preserved the at-will relationship between employers and employees using such commonly recited disclaimers that the at-will relationship "cannot be amended, modified or altered in any way" or that the relationship could not be changed except by a written agreement signed by the employee and particular executives. Disclaimers like these protect employers from employee breach-of-contract suits claiming the employees were told by someone in management that they could only be terminated for cause. In Solomon's view, these common provisions were overly broad and unlawful because they amounted to employees' waiver of right to advocate concertedly to change the at-will status.
To reduce exposure to costly litigation and potential liability for taking disciplinary action against an employee for violating a rule or policy the acting general counsel views as one that may chill Section 7 activity, employers should review their rules and policies and attempt to conform them with the NLRB's current prosecutorial policy.
The keys are to understand what constitutes Section 7 activity, to evaluate whether rules or policies are such that they could prohibit Section 7 activity, and, if so, to redraw them with specificity.