Sure you must, and in more ways than you might think.  Most non-union employers recognize that the National Labor Relations Act (NLRA) applies to them during union organizing activity and the period preceding a union recognition election.  To take the most obvious example, an employer cannot discharge an employee for engaging in union organizing efforts, and it may have to answer to the National Labor Relations Board (NLRB) if it does so.  Many employers, however, overlook broader application of the NLRA in a non-union setting, particularly with respect to work rules.

Under the NLRA, any work rule prohibiting or likely to have a “chilling effect” on employees’ Section 7 rights – the right to engage in union organizing or other concerted activity for mutual aid or protection – may constitute an unfair labor practice.  This may be true even for employers who have never seen a union and even if their work rules have never been enforced. 

In Guardsmark, LLC v. NLRB, a recent decision of the U.S. Court of Appeals for the District of Columbia Circuit, three relatively common and seemingly innocuous work rules were found to violate the NLRA because of their potential to have a chilling effect on employees’ Section 7 rights, and the employer was ordered to change them.

Chain-Of-Command Rule.  The employer in Guardsmark, a security company, had a rule generally stating that employees must follow the “chain of command” in reporting work-related issues.  The NLRB challenged a sentence stating:  “[D]o not register complaints with any representative of the client.”  The NLRB concluded, and the reviewing court agreed, that this infringed on the employees’ Section 7 rights to solicit sympathy and support from the general public and clients regarding the terms and conditions of employment.  The employer’s argument that it did not enforce the rule in a manner that would punish Section 7 activity was rejected; mere maintenance of the rule constituted an unfair labor practice. 

Solicitation And Distribution Rule.  Another Guardsmark rule banned “[s]olicitation and distribution of literature not pertaining to officially assigned duties . . . at all times while on duty or in uniform.”  The NLRB found that this was also an unfair labor practice, and the court agreed.  In general, employers, whether union or non-union, may prohibit employees from soliciting other employees and distributing literature only during working times and/or in working areas.  Guardsmark’s rule went farther – and crossed the line – by prohibiting an employee from engaging in these protected activities at any time he or she was in uniform, whether the employee was working or not, and whether the employee was in a work area or not. 

No Fraternization Rule.  Yet another Guardsmark rule told employees they must not “fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.”  The NLRB found this rule to pass muster, but the appeals court disagreed.  The NLRB concluded that employees would reasonably understand it to prohibit only “personal entanglements,” rather than activity protected by the NLRA.  The court ruled, however, that the somewhat vague term “fraternize” could lead employees reasonably to think it prohibited discussions of terms and conditions of employment.  The union that filed the charge against Guardsmark argued the word “fraternize” includes having “fraternal” relationships and unions are “fraternal” organizations.  It may be best for employers to avoid that word.

Confidentiality Rule.  In another recent decision, Cintas Corp. v. NLRB, the D.C. Circuit affirmed an NLRB decision that a confidentiality rule prohibiting employees from disclosing any information about their employment unlawfully restricted the exercise of Section 7 rights.  Agreeing with the NLRB, the court held that employees could reasonably construe the rule to restrict discussion of wages and other terms and conditions of employment with co-workers and a union, which chilled their Section 7 rights – even though the company had never enforced the rule in this manner. 

All employers -- union and non-union alike -- would benefit from reviewing their work rules periodically to see whether they interfere with employees’ rights under the NLRA, or might reasonably be construed to do so.  Employers should consider including a strategically placed statement in rules that could arguably be construed to chill employee speech that such an effect is not intended.  For example, a confidentiality rule could state:  “This rule is not intended to prohibit discussions with others regarding employees’ terms and conditions of employment.”  And, of course, employers must apply rules consistently and not in a manner that would inhibit or punish Section 7 activity.

Right To Co-Worker Representative.  In addition to issues relating to work rules, employers also need to be aware of the NLRB’s position on application of so-called Weingarten rights for non-union employees.  This is the right of an employee, upon request, to have a representative present during an investigatory interview that could lead to the employee’s discipline (this does not include a meeting in which discipline that has already been decided upon is meted out to the employee).  Although the Board has flip-flopped several times over the years on the application of Weingarten to the non-union workplace, since 2004 the Bush appointed Board has taken the position that the NLRA does not require a non-union employer to allow a co-worker representative to attend an employee’s investigatory interview.  But it remains the Board’s position that a non-union employee may not be disciplined for asking to have a co-worker representative present.  And since thepolitically sensitive Board has reversed itself so many times regarding Weingarten’s applicability in a non-union setting, prudent employers should take into account the possibility of this happening again when responding to such a request.

Sonja L. Lengnick