Three recent decisions of the National Labor Relations Board are of practical significance to employers opposing state unemployment claims, utilizing non-union arbitration procedures, or inclined to take pictures of employees’ activities.

Unemployment. In North Carolina License Plate Agency, during an NLRB trial addressing the propriety of the discharge of three employees, the employer resisted the admission of documentation and testimony it had earlier furnished in a state unemployment proceeding on the ground that it was “privileged” from use in other proceedings under state law. Many states, including Michigan, have similar preclusionary rules in their unemployment statutes — in recognition of the summary nature of unemployment proceedings and the need to avoid turning them into major litigation pieces. The Board rejected the employer’s argument, however, reasoning that it would recognize only those privileges adopted under federal law and that the federal interest being advanced by the NLRB outweighed any state interest. The message for employers: Watch what you say or submit to an unemployment agency since there is a chance it could be used against you later in an NLRB proceeding.

Arbitration. Many employers have implemented non-union arbitration procedures as the “exclusive, final, and binding” method for resolving discharge disputes, and these have been steadily gaining acceptance in federal and state courts. However, in U-Haul Company of California, the Board recently found that the employer’s arbitration procedure — which contained typical broad coverage language — had a built-in unfair labor practice because it stated that it was the exclusive dispute resolution mechanism without explicitly carving out NLRB charges. The Board reasoned that this would inhibit employees from exercising their statutory right to file NLRB charges (the EEOC has taken a similar position). It may seem odd or excessive, but the message from the Board to employers is: Mention the NLRB by name (and the EEOC too while you are at it) when excluding administrative proceedings from an arbitration procedure’s exclusivity language.

Picture-Taking. The NLRB’s rules regarding the photographing or videotaping of employees’ statutorily protected activities (e.g., while striking or distributing union literature) have flip-flopped somewhat over the years. The Board has at times utilized presumptions that it was coercive for an employer to do so, but not for a union to do so unless accompanied by other coercive activity. In Randell Warehouse of Arizona, the Board, responding to criticism by the U.S. Court of Appeals for the D.C. Circuit, recently articulated a new egalitarian rule: “In the absence of a valid explanation conveyed to employees in a timely manner, photographing employees engaged in Section 7 activity constitutes objectionable conduct whether engaged in by a union or an employer.” The message for employers: If you are going to take pictures of such activity by your employees, promptly explain why you are doing so.

Theodore R. Opperwall

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