button Vol. 7
No. 5



line Non-union

line Obesity In
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Braun Consulting News
News on Personnel, Labor Relations and Benefits

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Human Resources and labor relations Labor Law and Non-union Employees
   Latest Developments and Issues

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Checkmark Graphic Latest Developments On Weingarten Rights, Overturned.

     - The Latest Ruling In The IBM Case

Previously in our Newsletters on the Braun Consulting Group website we have discussed Weingarten Rights, the NLRB, and how these affect non-union employers.
("NLRB Broadens Regulation of Non-union Employer Conduct")
("Epilepsy Foundation of Northeast Ohio v. NLRB, Decision.")

On June 15th, 2004, the NLRB (National Labor Relations Board) overturned its decision in the earlier Epilipsy Foundation case that gave employees in Non-union workplaces the right to have a coworker present during investigatory meetings.

Because of this ruling it is now possible for employers to deny a Non-union employee's request to have a coworker present during interviews that the employee reasonably believes might result in discipline.

The current case ruled on by the NLRB is IBM Corp., 341 NLRB NO. 148 (2004). This case concerns three IBM employees who were interviewed in October 2001 about harassment allegations brought by a former IBM contract employee. During the first investigatory interview none of the three employees asked to have a coworker present, but they did make a request to have a coworker present during the second interview. An IBM manager denied their request. The interviews were held and a month later the employee's were fired.

After the employees filed unfair labor practices because of a "violation under Epilepsy Foundation" precedent and "denial of their Weingarten rights", IBM then appealed the ruling by an administrative law judge who initially ruled in favor of the employees. The NLRB has now overturned that ruling and agreed with IBM that the right to a coworker present in Non-union settings could compromise the employer's investigation process.

In justifying the ruling, the NLRB noted the rise in the need for workplace investigations in response to concerns over security and workplace violence, and new statutes and court cases governing the workplace. In addition to discrimination and harassment investigations, employers are now responsible for investigating complaints of corporate abuse, workplace violence, fiduciary lapses, and "real and threatened terrorist attacks."

In its ruling the NLRB also called attention to the dissimilarities between union and Non-union work forces by pointing out that a coworker in a Non-union setting does not represent or have an obligation to represent the entire workplace.

The ruling noted: "Our consideration of... the contemporary workplace leads us to conclude that an employer must be allowed to conduct its required investigations in a thorough, sensitive, and confidential manner. This can best be accomplished by permitting an employer in a Non-union setting to investigate an employee without the presence of a coworker."

Clarification: Non-union employees still have the right to request a coworker be present during investigatory meetings, it is just that employers are not required to grant that request under this new precedent. Employers cannot discipline an employee for making the request, but they don't have to comply.

To summarize the NLRB ruling in the IBM case the Board found that Weingarten rights do not apply to Non-union employees.

The Board relied on the following policy considerations:

    1. Coworkers do not represent the interests of the entire work force, as would a union representative in a unionized setting.

    2. A coworker in a Non-union setting does not have the force of the bargaining unit behind him or her and cannot redress the "imbalance of power" between the employer and employees.

    3. A coworker in a Non-union setting typically does not have the same skills as a union representative and may impede the investigatory process rather than facilitate it.

    4. The presence of a coworker may compromise the confidentiality of the investigation.

The Board noted that on balance, an employer's right to conduct prompt, efficient, thorough, and confidential workplace investigations outweighs the right of an employee to a coworkers presence in the absence of a union.

"It is our opinion that limiting this right to employees in unionized settings strikes the proper balance between the competing interests of the employer and employees."

"Some employers, faced with security concerns that are an outgrowth of the troubled times in which we live, may seek to question employees on a private basis."

Lastly, in the IBM ruling the Board left themselves some wiggle room by acknowledging that there are two permissible views regarding Non-union employees' Weingarten rights.

This leaves the door open to overruling by future boards.

If you have any questions or concerns about Weingarten rights of Non-union employees in your workplace you can contact us at Braun Consulting Group.

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     - What Is An Investigatory Interview?

An investigatory interview occurs whenever a supervisor questions an employee to obtain information that could be used as a basis for discipline.

If an employee is called in to a supervisor's office merely to be informed of a disciplinary decision, the courts have found that this is not an investigatory meeting. The decision to discipline the employee has already been made.

However, if the supervisor asks additional questions about the employee's conduct, the meeting becomes an investigatory interview.

It is NOT an investigatory interview when a manager is just giving instructions, training, or correcting the employee's work technique. It is not an investigatory interview if it is a meeting where discipline is being imposed.

IF the employer decides to allow a coworker to be present at an investigatory interview, the coworker has the right to know in advance the subject of the interview and may assist and counsel the questioned employee during the interview. He or she has the right speak privately with the employee before the interview but cannot tell the employee what to say.

He or she may advise the employee how to answer a question, may interrupt to clarify a question or to object to confusing or intimidating tactics, and is allowed to add information to support the employee's position.

If you have concerns about conducting investigatory interviews in your workplace contact us at Braun Consulting Group to see if we can help.

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Checkmark Graphic "Concerted" And "Protected" Activity Covered

The National Labor Relations Act (NLRA) protects associational rights of Non-union employees as well as union employees.

Section 7 of the NLRA states: "Employees shall have the right to self-organization, to form, join, or assist labor organization, 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."
(29 USC Section 157)

It is clear that Section 7 covers employee behavior in a private sector, Non-union workplace when that behavior is both concerted and protected. The tricky part is in determining what satisfies this dual requirement of "concerted" and "protected" behavior.

Non-union employees who act "in concert" generally must act as a group. However, the concept of concerted behavior can include employees who initiate, cause, or prepare for group activity, or who are spokespersons for other employees on matters of common concern.

"Concerted" activity is any activity by individual employees who are united in pursuit of a common goal. For an employee's activity to be considered "concerted", the action must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.
(Myers Industries, 281 NLRB 882, 1986)

Concerted activity includes organized employee protests as well as spontaneous, informal employee conduct, such as employees participating in a group protest that spontaneously happens in the workplace to protest working conditions, hiring practices, employee discipline, or work assignments.

Non-union employees who act with other employees or on behalf of other employees, whether formally or spontaneously, are consider to be acting "in concert" according to the NLRA.

The activities must be "concerted" before they can be "protected" by the NLRA.

"Employees" covered by the Act can include almost any employee except "supervisors"... Section 7 applies to most non-supervisory and/or non-managerial employees.

"Protected, Concerted Activity" is activity engaged in for employees' "mutual aid or protection", even if it is not union related. This activity can include employee efforts to improve working conditions and terms of employment.

Section 7's protection of employee-concerted activity that is for "other mutual aid or protection" includes:

"Aiding a discharged employee in filing an EEOC complaint, alerting management to a malicious rumor, posting a sign and alerting the news media that a mysterious illness was afflicting workers . . . discussing work schedules with coworkers, making efforts to secure paid maternity leave for a coworker . . . distributing materials urging coworkers to vote in favor of a local ordinance concerning random drug testing, and using an internal electronic mail system to oppose and enlist other employees to join in opposing the employer's implementation of a new employment policy."

When concerted action is protected under the NLRA, Non-union employers cannot lawfully discipline employees for their behavior or establish work rules or policies that unduly restrict employees' rights to engage in that behavior in the workplace.

Discipline of employees for behavior protected by Section 7 is an unfair labor practice, even if there is no evidence that the employer had a motive or intent to discourage employees from engaging in Section 7 behavior.

The NLRB and the courts have found that some forms of concerted employee behavior will not receive protection even if they are apparently for mutual aid or protection. When employees break the law, engage in violent behavior, refuse to follow the employer's instructions, behave disloyally toward their employer, or breach a contract such as a collective bargaining agreement, then their concerted activity will not be protected.

To avoid interfering with Non-union employees' Section 7 rights you should determine:

    Checkmark graphic Is there concerted activity? Were two or more employees acting together - or was one employee acting on the authority of other employees?

    Checkmark graphic Is the activity protected, that is, was it engaged in for employees' "mutual aid or protection"?

    Checkmark graphic Is the employer's adverse employment action motivated by the employees' protected concerted activity? Did the employer know of the activity? Was the employer motivated to act by it?

All employers regardless of union status should exercise care when their employees engage in conduct that could be perceived as concerted activity in the workplace.

If you have questions about what activities are considered "concerted" or "protected", or who may or may not be deemed an "employee" or "supervisor" in your workplace, you can contact us at Braun Consulting Group for more information.

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Checkmark Graphic Electronic Monitoring, E-mail, and Internet Related Issues.

The use of e-mail and the Internet as they are related to "concerted and protected" activity of Non-union employees is an area that can be confusing for many employers.

A study of 1,627 U.S. Businesses in 2001 by the American Management Association found that 62.8% of businesses were monitoring Internet connections and 46.5% monitored the storage and review of e-mail messages. In a separate study the Privacy Foundation reported that 35% of workers "online" were under "continuous online surveillance."

Generally private-sector employers can monitor their employees if they inform them that they are under surveillance. Then the employees can no longer make the claim that the surveillance violated a "reasonable expectation of privacy."

What becomes problematic in monitoring employees is when there is activity that is considered "concerted and protected", because even though it is in the digital domain it is still protected by Section 7.

In "Timekeeping Systems Inc. v Leinweber", the NLRB held that a company committed an unfair labor practice when it fired an employee for sending an e-mail message criticizing the company's vacation policy to other employees. In this case the NLRB ruled that the employee's e-mail was "protected concerted activity".

Employers need to be aware of the possibility that employees who use employer-provided e-mail systems on the job may have legal rights to use company computer equipment to engage in protected concerted activity. Section 7 protects electronic communications that have nothing to do with union organizing, such as discussions of wages or new workplace policies.

Monitoring employee e-mail or Internet usage may be considered a new context for management interference with employees' rights to engage in protected concerted activity. Electronic monitoring of employees may be unlawful spying on Section 7 activities, in violation of the NLRA.

In general the laws will apply in the digital domain that apply in everyday workplace settings, but there can be some differences. Company rules relating to Internet and e-mail usage for employees in the workplace are often lax, and not clearly defined, sometimes leading to trouble.

If you have any questions about monitoring e-mail and internet usage, or how these areas effect concerted and protected activity of employees in your workplace, contact us at Braun Consulting Group and we may be able to help you.

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