Say you own or manage a fuel oil company and some employees talk to each other about their wages and working conditions – or they complain about their pay and workplace in a leaflet, on Facebook, or via Twitter. What recourse do you have?
Not much, according to Robert Nagle, a lawyer who specializes in labor law and advises employers how to avoid running afoul of the National Labor Relations Act (NLRA).
“What a lot of employers don’t recognize is that the National Labor Relations Act applies to them whether or not they have a union,” said Nagle of the Philadelphia, Pa., office of law firm Saul Ewing LLC. Nagle spoke about the statute, how it is enforced by the National Labor Relations Board (NLRB), and how that affects all employers, at the Atlantic Region Energy Expo in May in Atlantic City, N.J.
The act vests employees with, among other things, the right to organize, to form and support unions, and to engage in “concerted activity for each others’ mutual aid and protection,” according to the board’s website (nlrb.gov/).
“Any private company of any size is going to be covered by this law,” Nagle said. “The statute applies to basically all employers in the fuel oil space,” he added.
In 2011 in the private sector, 6.9 percent of workers were union members, according to the U.S. Department of Labor. While union organizers in the past might have tended to set their sights on larger operations, that is not as true today, Nagle said.
“Recently I think the unions aren’t so much interested in size as much as chance of winning and ease of organizing,” he said. “Within the last year I’ve had campaigns with employers who only have six or seven employees.”
Smaller and family-owned businesses tend not to have a dedicated human resources person who is knowledgeable about the NRLA, Nagle noted, nor do they usually have in-house legal counsel, “so they tend to be more vulnerable.”
Employers could incur legal liability and potentially monetary liability if they “inadvertently step on their employees’ rights” under the statute, Nagle said.
The NLRB interprets and enforces the statute, and is charged with protecting the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions.
The overwhelming majority of cases brought before the NLRB, and enforcement actions taken by the general counsel of the board, involve alleged unfair labor practices by employers, Nagle said. “And it has always been so.” He estimated that 80 percent or more of all unfair labor practice charges brought to the board are filed by unions or employees against management.
The NLRB in June launched a public Web page that describes the rights of employees to act together for their mutual aid and protection, whether they are in a union or not.
The Web page (nlrb.gov/concerted-activity) describes recent cases involving “protected concerted activity” – a principle of the NLRA that every employer should be familiar with, Nagle said.
The cases described on the website include one in which a group of co-workers was fired after discussing their grievances with a newspaper reporter, and another, in 2011, in which an employee was fired after posting work-related grievances on Facebook.
“Some cases were quickly settled after charges were filed, while others progressed to a board decision or to federal appellate courts,” the board said in a statement announcing the launch of the new website. “They were selected to show a variety of situations, but they have in common a finding at some point in the NLRB process that the activity that the employees undertook was protected under federal labor law.”
The board noted that the right to engage in certain types of concerted activity was written into the original 1935 National Labor Relations Act’s Section 7, which states that: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”
That right has been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court over the years, the board noted, adding that non-union concerted activity accounts for more than 5 percent of the agency’s recent caseload.
When the NLRB’s general counsel authorized a complaint against an employer because the employer acted against an employee who complained on Facebook about a supervisor, the decision was like “the shot heard round the world” for the labor management community, Nagle said.
The “groundbreaking” view of the board’s general counsel is that social media “is just that,” Nagle observed. “It’s just a different medium or channel of distribution for information.” Employees always have had the right, under the statute, to talk among themselves about terms and conditions of employment, Nagle said, including what managers they like or don’t like, and their objections to certain management practices. Employees also have the right to distribute literature in non-work areas at non-work times on those subjects, he added. Employees also have the right to walk around with a picket sign expressing displeasure about their employer, Nagle said.
“These are rights that probably a large majority of employees are not aware that they have,” Nagle said.
“The Facebook case was just an extension of existing legal principles to a new medium,” he said, “but it was shocking for employers because with social media employees can reach a much wider audience” than they could by distributing leaflets or picketing.
Although the so-called “Facebook” case was later settled, Nagle called the board’s action in that case a “game changer from the standpoint of an employer who is careful about his reputation and wants to protect his reputation among the public.”
If employees are “trashing” certain aspects of their employment on Facebook and Twitter “there’s a much greater likelihood that the employer’s customers and business partners are going to see it and be concerned about it,” Nagle said.
Employers have the right to tell their side of the story, but typically they “aren’t interested in waging a public relations battle with their employees,” Nagle said. “Employers would prefer that the argument never occur,” Nagle said, or that it be hashed out in-house.
Employers would do well to familiarize themselves with the fundamentals of the NLRA, Nagle said.
“I think a lot of employers routinely violate the National Labor Relations Act without even knowing it,” he said. “I’ve reviewed any number of employer handbooks that have policies that say employees may not discuss their wages with one another.” The fact is, employees have the right to do just that, Nagle said.
Human resources professionals and outside counsel should add certain items to their checklist when reviewing the planned discharge of an employee or employees, Nagle advised. A key general question is: Was the person engaged in legally protected activity?
Nagle said protected activity under the statute includes: complaining about being paid wrongly; complaining about sexual harassment; and talking about forming a union. (For more details, visit the NLRB website.)
“Lots of companies’ handbooks have rules that don’t comply with the NLRA, and if you terminate or discipline an employee for violating [such rules] that action is fruit of the poisonous tree,” Nagle said. “You open yourself up to legal liability.”
Employers today typically know they can’t discriminate based on age, race and gender, but some are nonplussed to find out that they can be disparaged or mocked, with impunity, by their own employees.
“They have the right to disparage you publicly,” Nagle said of employees. He described a hypothetical example of an employee distributing leaflets that lampoon the owner of a business as someone carrying big bags of money and puffing a cigar, and accusing him of “screwing the workers.”
Nagle said, “If you’re the owner your natural reaction might be, ‘I’m gonna fire that SOB.’ Well, guess what? That would probably be unlawful.”
Attorney: If Romney wins, NLRB would change
If Republican presidential candidate Mitt Romney wins the presidential election in November, the makeup of the National Labor Relations Board would change, and so, probably, would its stance toward employee rights and organized labor, said a labor law expert.
There are currently three Democrats and one sitting Republican (Brian Hayes) on the National Labor Relations Board. Normally there are five on the board, but G.O.P. board member Terence F. Flynn resigned in May after the board’s inspector general found that Flynn leaked documents to G.O.P. allies, according to news reports. His seat is currently vacant.
“The partisan makeup of the board is very significant,” said Robert Nagle, a lawyer and management advocate who represents employers in cases before the board. The Democrat appointees now serving “are very supportive of organized labor’s agenda,” he said.
The current board interprets the act broadly, Nagle said, “in a way that maximizes employees’ rights and union rights under the statute at the expense of employers’ rights. That’s been manifested in decisions that tend to favor the interests of employees.”
A victory by Romney could affect the makeup of the board, Nagle said, because the president appoints the board’s members. Each president has always appointed three from his party and two from the opposition party, Nagle said. Terms are five years and appointments, with Senate consent, are staggered so that one member’s term expires each year.
If Romney wins, Nagle said, “he will have an opportunity to alter the partisan makeup of this board. It would be expected that his appointees would be more friendly to management/employers and less friendly to unions than the current board is.”
The president also appoints the board’s general counsel, Nagel pointed out. The current general counsel believes that the statute should be interpreted broadly,” Nagle said, and “uses his position as a bully pulpit for workers’ rights under the statute.”