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Employee Handbooks 9/19/2013
Firewall against Unions or an Open Invitation to Organize?
By: James M. Reid, IV; Bob Carroll

Our guest author this week is James Reid, IV, Employment Attorney at Maddin Hauser. Please join us to read his discussion of employment policies that should be reviewed for compliance with the NLRA (National Labor Relations Act). James can be reached via email at jreid@maddinhauser.com or phone at (248) 351-7060.

Companies, even those that are not a potential target for unionization (if such scenario exists), rarely give any consideration to the National Labor Relation Act ("NLRA") when preparing employee handbooks. Section 7 of the NLRA gives employees "rights to engage in concerted activities for the purpose of mutual aid or protection", which applies to most private sector employers. Employees are increasingly engaging in Section 7 rights for purposes of obtaining job security. Stated another way, if an employee is terminated (or even disciplined), the new trend is for the employee to file a claim with the National Labor Relations Board unless the employer offers them a favorable severance package.

Believe it or not, every business has (or should have) set policies and procedures that govern how employees are expected to perform and behave each day while working for the employer. These policies set forth expectations by the employer. When written properly, these policies and procedures clearly outline how day-to-day operations should be run in a smooth, orderly fashion to get the job done with a focus on excellence. When written haphazardly, they set a tone of confusion in the eyes of the employees; employees do not have a clear understanding of what is expected of them. But when applied to union vulnerability a whole new level of danger is revealed.

There are at least 10 standard employee handbook provisions and related policies (including Social Media, Video and Audio Surveillance, Confidentiality, Computer Usage, Harassment, Non-Disparagement, Off-Duty Conduct, Solicitation/Distribution, Open-Door Communication, and Arbitration) that should be reviewed to make sure that they do not chill an employee's Section 7 Rights. Generally, policies that are too broad in scope could be interpreted as prohibiting employees from engaging in concerted activity. By way of example, a broad Confidentiality Policy that requires all company information to remain confidential violates the NLRA since it may be interpreted as prohibiting the discussion of working conditions and/or wages. Likewise, a Harassment Policy that prohibits all forms of harassment could be interpreted as preventing employees from soliciting other employees and/or distributing literature during breaks. However, specific policies, such as banning employees from referencing his/her employer's name on social media, also violate the NLRA. Therefore, the only way to ensure that employee handbooks do not violate the NLRA is to have an attorney that is familiar with recent decisions from the NLRB review them.

When employee handbook provisions are properly drafted, employers can rebut claims alleging Section 7 retaliation by referencing the specific provisions of the employee handbook that the employee violated. Stated another way, it is permissible for employers to discipline employees for violating the employee handbook as opposed to engaging in protected activity.

Employee Handbooks that are updated after employees engage in Section 7 rights are reviewed with more scrutiny. Any policy prepared after an employee engages in protected activity will be reviewed under a microscope to determine if it was created to chill employees' rights. By way of example, a video surveillance policy that is put in place soon after employees engage in a demonstration will likely be interpreted as a tactic to intimidate employees from engaging in further demonstrations. If the surveillance policy was already in place, there would be many permissible reasons to justify it, such as security/safety. Therefore, it is extremely important for employers to have well-drafted policies in place before employees participate in concerted activity.

Many people do not understand how unions work when organizing employees. To most, unions step in when employees feel that they want more money or working conditions become deplorable. To the "average Joe", unions are a protective force for employees who suffer wrongdoing from an employer. In reality, labor unions are mere corporations looking for new and innovative ways to organize workers to bring revenue into their system. Unions do not necessarily look for employees who are underpaid to target them for an organizing campaign; rather, they look for weak links. They look for anything and everything they can find to develop an emotional platform to run an organizing campaign. In fact, most organizers will not even pursue a campaign if it is driven only by a desire of financial gain by the employees.

One area that unions exploit to their advantage is policies and procedures. One obvious area they look at is whether or not policies and procedures are written within the letter of the law. Many organizations have outdated policies. The law has dramatically changed over the past few decades (even recent months) leaving a number of employers at risk for potential law suits due to policies that were once common in the workplace that now are illegal. Unions not only use this to discuss the illegal components of the policies and procedures with employees to build support, but also to assist and even push employees to file charges against the employer. Once a lawsuit or unfair labor practice claim is filed it is far easier for the unions to push their "we are here to protect you" speech on the workers. The union organizer will paint a picture of the employer as a "law breaker" who does not really care about their employees. More often than not, the employers really do care deeply for their workers and were attacked by a union due to their ignorance of the law. Far too many times, a simple revision or two in an employee handbook could have saved large amounts of money, hearing dates, and headaches by preventing frivolous lawsuits or unfair labor practice claims.

Sometimes policies and procedures are written to comply with the law but still lend to union vulnerability. Many employers take such pride in the policies they craft that they fail to realize that the policy itself is a point of concern to employees to the point that they tend to seek unionization. This is where it can get a bit tricky; as an employer, you want to maintain control of your workforce so that you are moving forward with your vision without compromising your organization's mission and standards. Sometimes to accomplish this, you need to set pride aside and listen to the workforce. You may even find that the workers themselves have paid attention to your vision and mission to the point where their input on the policies could lead to a, dare I say it, "better way to do things". There should be a balance between controlling the operations and leaning towards positive employee relations.

If an employer's policies are legally sound and reflect their mission and vision while, at the same time, reflect a positive employee relations position, then they aid greatly in building a firewall between the workers and the union. But, if they are weak or written illegally, then the unions will follow the path of weakest resistance and use them to their advantage. It is something that is difficult to argue because every employee has received a written copy of these policies an can do the research for themselves and see that the union is correct in their allegations. Employees now have a sense of trust in the unions and believe that they are truthful and honest. In all reality, unions often bend the truth; once they have built a sense of trust with the workers, it becomes even easier for them to start promising better wages and working conditions, which is legal for them to do. Unions can promise anything they want, but the National Labor Relations Act says that better wages and working conditions have to be negotiated. At this point, an employer can try to explain this to employees, but who are they going to believe: the employer who has just been exposed as breaking the law or the union who just exposed the employer?

To maintain a union-free work environment you need to be proactive. Part of this proactive process is shoring up your policies and procedures. It is highly recommended that this happens now as we are in a new era with the NLRB. The NLRB is operating a full 5 person Board for the first time in a decade under a pro-union President. Although there is some favorable case law for employers, no case law is cited in this article for the reasons that the new NLRB Board may decide such cases in favor of the employee and each case is factually specific. Furthermore, it is expected that this Board will be pushing for a quicker union election process. Currently, we see an average of 39-42 day span between the time a union petition is filed with the NLRB and a union election. This could be greatly reduced in the not-so-distant future. Once this happens, communicating to workers and regaining their trust will be much more difficult. It will not matter if you are an employer who really cares about your workers and simply lost touch with them, or are claiming ignorance of the law, or are actually a horrible boss. Trust is lost by employees once a petition is filed. Under a quick election process, unions will win more campaigns simply because time will no longer be on the employer's side. You will frequently not have the required time to make necessary adjustments to win your employees back. Be proactive. Look at your policies now. Make sure your policies are a firewall against the unions, not an open door to organize.

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