Federal law prohibits Minnesota employers, including small businesses, from engaging in unfair labor practices. An employer engages in this prohibited activity when it interferes with, restrains or coerces employees from participating in union organizing and activities such as compensation discussions or work terms and conditions.
Employer policies or work rules that explicitly restrict these employee activities, known as Section 7 rights, are unlawful. Where a policy or rule is not explicitly restrictive, the National Labor Relations Board relies on a three-part test. First, whether employees can reasonably construe the policy or work rule to prohibit Section 7 activities. Second, whether the rule or policy was issued in response to union activity. Finally, whether the rule was applied to restrict Section 7 rights. The presence of even one of these elements indicates that the rule or the policy is an unfair labor practice.
A recent NLRB decision illustrates the problems confronted by employers where an employee can construe a policy or rule as violating Section 7 rights. A chain of grocery stores provided workers with a written code of conduct containing the affirmative requirement that its employees keep customer and worker information secure. The information may be used fairly, lawfully and solely for the purpose it was obtained, according to this policy.
A NLRB three-judge panel reversed an administrative judge’s dismissal of a complaint that the policy would restrict Section 7 rights because employees could reasonably interpret its language to prohibit disclosure of employee wages and other employment terms and conditions to union representatives and other employers or individuals. In a 2-1 decision, the panel found that the policy could be reasonably construed to prohibit discussion and disclosure of information about other employees such as wages and employment terms and conditions. Also, utilization of the information for which it was obtained violates Section 7 rights because the grocery store chain business purpose does not include protected discussion of wages or working conditions with other employees, union representatives or NLRB agents.
Planning and advice can help employers prevent employment disputes. Reasonable drafting and implementation of work rules and policies can help assure that employers are complying with federal and Minnesota laws and help defend against business litigation and other legal actions.
Source: Minnesota Department of Employment and Economic Development, “National Labor Relations Board (NLRB) Reads Employee Code of Conduct in Determining Employer Engaged in an Unfair Labor Practice,” Retrieved Sept. 29, 2014