But as I continue to recap the breakfast I attended earlier in the week with NLRB (Region 34) Regional Director Jonathan Kreisberg, of particular importance to employers was the discussion about what issues the NLRB may see reoccur from time to time. The NLRB recapped some of these in its January 2010 newsletter and its worth a read through (page 4).
Here are some highlights from our discussion:
- Kreisberg indicated that employer rules that have broad confidentiality provisions prohibiting employees from discussing wages, benefits and working conditions with co-workers are likely to be struck down. While protecting "trade secrets" is a legitimate concern, he indicated that many employer rules — in his view — go too far.
- He also said that rules that prohibit employees from discussing non-confidential matters with the media are likely overbroad, though rules that restrict an employee from talking with the media as the company’s "spokesman" may be more palatable. For more information, he pointed to a relatively new NLRB case which discusses this in more detail: Trump Marina Assocs., 354 NLRB 123 (2009).
- Kreisberg also noted that anti-solicitation rules may be properly drafted so long as the rule does not prohibit employees from distributing written materials during non-working time in non-working areas. Kreisberg said however that employers often run into difficulties in the selective application of the rule. (And in this time of Girl Scout cookies, it’s a good reminder.)
- He did note that employers can prohibit the use of employer’s e-mail system for union solicitation but he again cautioned that selective enforcement of the rules could lead to issues with the NLRB down the road.
- We also discussed "anti-harassment" policies. For the most part, if such policies are in the context of discrimination/hostile work environment discussions, he did not see much of an issue with it. But he indicated that the NLRB will look to see if the application of the rule is showing an anti-union bias. He also reminded everyone that during elections, the NLRB seems to allow behavior (particularly from union personnel) that might not otherwise be tolerated if in the context of daily working activities.
- Lastly, Kreisberg indicated that the NLRB had produced a video designed to inform the public about the role of the Agency in conducting elections. It is also available on DVD upon request to employers and others. (And he noted that if an employer uses this video during an election, it would pass muster as an neutral educational video.)
So what’s the bottom line for employers?
- Review your confidentiality, anti-solicitation and anti-harassment policies to ensure that they will pass muster under scrutiny.
- Perhaps more importantly, educate staff about the appropriate application of the policy to union activities.
- And finally, even if you do NOT yet have a union at the workplace, these rules (such as blanket prohibitions on employees’ discussions of wages) may still apply, so if you’re concerned, be sure to seek appropriate legal counsel.