Non-Union Employer Policies Must Comply with National Labor Relations Act
Non union employers often believe they are not covered by the National Labor Relations Act (“NLRA”), which generally governs union-management relations. As two recent cases handed down by the D.C. Circuit make clear, the NLRA’s provisions must be considered when any employer drafts employment policies.
In Guardsmark, LLC v. NLRB, 475 F.3d 369 (D.C. Cir. 2007), the court found the employer violated the Act when it issued a handbook containing work rules requiring employees to register their complaints through the chain of command, and barring them from “fraternizing” with each other during or after work hours. In issuing its ruling the court stated that where an employer promulgates work rules likely to have a chilling effect on section 7 rights, which permit employees to organize and engage in concerted activities for their mutual aid and protection, the Board may conclude the rules constitute an unfair labor practice, even absent evidence of enforcement.
In addressing the chain of command rule, the court found the employer improperly implied that employees were prohibited from seeking, while off duty, the sympathy and support of company clients regarding complaints about terms and conditions of employment. Because employees have a statutory right to seek such third party support the rule violated the Act. The court went on to state the mere presence of a rule was enough to run afoul of the law even if the employer does not enforce it.
The court also held that the company’s fraternization rule, which Guardsmark claimed was meant to prevent “personal entanglements,” violated the NLRA because it could reasonably be interpreted as prohibiting employees from discussing terms and conditions of employment with each other. Further, as unions are fraternal organizations, the court reasoned that employees may perceive they were prevented from participating in union activities.
One month later the DC Circuit issued a second case reaffirming the Act’s coverage of non-union employers when it found a confidentiality policy violated the law. Cintas Corp. v. NLRB, 2007 U.S. App. LEXIS 6075 (March 16, 2007). Cintas issued a handbook containing a rule prohibiting employees from disclosing any personal work related information considered confidential by the company. The court found the rule had a chilling effect on section 7 rights, which permit discussion of wages and working conditions, and also rejected the company’s defense that it had not disciplined anyone for engaging in such activity.
These cases make it clear that non-union employers must be cognizant of the NLRA when drafting handbooks, policies and work rules. Any restriction on the right to discuss wages and other terms and conditions of employment must be narrowly tailored and premised on a legitimate business purpose, or it may trigger unfair labor practice charges. Experts suggest non-union companies have counsel review their documents to ensure compliance with the nuances of the NLRA.
