20.2 Rights and Responsibilities of Employees, Employers, and Unions

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

20.2 RIGHTS AND RESPONSIBILITIES OF EMPLOYEES, EMPLOYERS, AND UNIONS

20.201 Protected Activities. Under section 7 of the NLRA, employees are guaranteed the right to "self-organization, to form, join, or assist labor organizations" in becoming representatives of employees. ²³ This is the starting point from which many of the statutory rights given to employees emanate and from which many of the protections arise. This provision protects the employees' right to organize and to participate in union activity.

A. Concerted Activity. Another important concept is protected concerted activity, ²⁴ which is defined as activity by one person or employee relating to wages, hours, and working conditions that affects other employees of the same employer. The question of whether two or more employees must be involved to meet the "concerted" test has been the subject of much debate. In general, a single employee engages in concerted activity if he or she acts with

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the purpose of furthering group goals, even if the employee acts alone. ²⁵ Even when engaging in concerted activity, employees can lose the NLRA's protection if their behavior is too extreme or offensive. ²⁶

B. Standing to File Unfair Labor Practice Charges. Many persons are under the misconception that only labor unions can file unfair labor practice charges. In fact, anyone, in any setting, union or non-union, can file an unfair labor practice charge with the NLRB, and if it has merit, it will be processed to a conclusion. Thus, if the employees in the example discussed above were disciplined, the discipline would have violated their right to seek mutual aid and protection, and their right to do so would be "protected" under the concept of protected concerted activity. The employees, if disciplined for this activity in a non-union setting, could file their own individual unfair labor practice charge with the NLRB, and the regional office would process it as though it had been filed by a labor union.

C. Coworker Attendance at Investigatory Interviews. Although still eligible to file an unfair labor practice charge, a non-union employee's entitlement to have a coworker attend any investigatory interview that the interviewee reasonably believes may lead to discipline has been a subject of particularly intense debate over the last 30 years. The NLRB has made diametrically opposing decisions on this issue. With its decision in Epilepsy Foundation of Northeast Ohio, ²⁷ the NLRB overturned precedent and held that a non-union employee does have that right. However, the NLRB overturned that decision and returned to the previous standard with its decision in IBM Corp. ²⁸ Accordingly, non-union employees currently do not have a right to have a coworker present at investigatory interviews that they reasonably believe may lead to discipline. Because the NLRB's stance on this

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issue changes, review of the current state of the law is necessary before taking any action.

D. Employee Use of Social Media. The NLRB has issued several opinions on employee rights and social media. ²⁹ The NLRB has held that the NLRA protects employees' Facebook comments that relate to the terms and conditions of their employment and are directed at group activity. ³⁰ While the NLRB has acknowledged that the NLRA does not protect an employee's "mere gripes" or "rants," it has, in practice, found that most online criticisms directed at employers are protected. ³¹ Similarly, the NLRB has taken issue with overbroad social media policies that restrict employee speech, including policies that restrict activities on employers' own email servers. ³² Because this issue is developing rapidly, employers should review the current state of the law before drafting a social media policy or discharging an employee for disparaging online comments.

E. Workplace Policies in Employee Handbooks. Employers should also avoid overbroad workplace policies in employee handbooks. The NLRB has found several long-standing employer practices invalid, including at-will employment disclaimers, ³³ arbitration agreements and class-action waivers, ³⁴ confidentiality agreements that prohibit employees from discussing

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ongoing employee misconduct investigations, ³⁵ and restrictions on employees' rights to discuss pay and wages. ³⁶ Because many of these NLRB decisions concern long-approved workplace practices, employers should consult the relevant law to determine whether their employee handbooks still comport with the most recent NLRB developments. ³⁷

20.202 Union Organizing.

A. In General. The right to organize a union is granted to employees under section 7 of the NLRA. ³⁸ There are two ways to organize. The first is to hold an election with secret balloting, and the second is by collecting authorization cards.

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B. Election. The procedures a particular group of employees must follow to organize by holding an election and becoming part of a union is detailed in section 9 of the NLRA. ³⁹

1.	If authorized in writing by 30 percent of the employees, a union or group of employees may file a petition with the regional office of the NLRB to seek a secret ballot election.
2.	If the petition is supported by 30 percent of the employees and if the unit sought is appropriate, an election will normally be scheduled.
3.	Seven days after the scheduling of the election, the employer must provide the NLRB with an alphabetical list of all employees. The list must include the first and last names of all employees, spelled out in full, and their addresses. No telephone numbers or Social Security numbers are required. The NLRB provides this list to the union. If the employer delays providing this list or provides incorrect information, it risks having the election overturned and a new election ordered. 40
4.	At the election, the company and union are entitled to have observers whose primary responsibility is to check the identity of voters and to witness conduct at the polls. Company supervisors may not serve as union observers or be in the polling area when the polls are open. 41
5.	All elections are by secret ballot and are determined by the majority of the votes cast (not by a majority of the employees in the unit). 42 For instance, if there are seventy-five people in the approved unit but only forty

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	people vote in the election and twenty-one of them vote for the union, the union wins the right to represent the unit since it received the majority of the votes cast. However, the union legally represents all seventy-five of the employees in the unit, not just the twenty-one who voted for the union.
6.	The NLRB Casehandling Manual (the Manual) 43 provides that, in some situations, ballots may be cast by mail. Mail balloting is permitted at the discretion of the Regional Director and should be limited to circumstances where a personal ballot election would be unfeasible, such as where the employees are scattered because of their work duties and do not report to a central location for work. 44 The Manual makes clear that mail balloting cannot be used simply because that balloting would better serve the budgetary needs of the NLRB in conducting elections. In general, however, the NLRB has broad discretion in its administration of representation elections. 45
7.	If the union wins the election, it becomes the "certified representative" of all the employees in that unit, and the employer must deal with (bargain with) that union in connection with all matters concerning wages, hours, and working conditions for all unit employees.

C. New "Quickie Election" Rules. Effective April 14, 2015, the NLRB issued its new "quickie election" rules. The new rules made significant changes to longstanding rules governing union elections that are more favorable to unions. ⁴⁶ The new rules:

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1.	Eliminate the 25-day period between the date an election is ordered and the date the election is held. Now elections will be held "as soon as practical," which will, in most cases, reduce the time from an average of 42 days to between 10 and 24 days;
2.	Permit parties to electronically file election petitions and case documents, and permit the NLRB regional offices to deliver notices and documents electronically rather than by mail.
3.	Require the petitioner to serve (1) a copy of the petition, (2) a description of the new procedures, and (3) a Statement of Position form;
4.	Require the employer, by noon of the day before the pre-election hearing, to file a Statement of Position detailing any challenges the employer has to the proposed unit, including specifically identifying any classifications, locations or employee groupings the employer contends should be added to or excluded from the proposed unit, and the bases for such contentions;
5.	Require the employer to include with its Statement of Position an alphabetized list of the full names, work locations, shifts and job classifications of all individuals in the proposed unit;
6.	Deem any arguments not raised in the Statement of Position to be waived unless the employer can show good cause for the omission;
7.	Require a pre-election hearing to begin eight days after a hearing notice is served;
8.	Delay an employer's right to appeal voter eligibility and inclusion determinations until after the election;
9.	End the parties' right to file a brief within seven days of the closing of the pre-election hearing and, instead,

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	allow such briefing only if the regional director determines it is necessary;
10.	Require, within two days of the approval of an election agreement or direction of election, that, in addition to the home addresses previously required, an employer must provide to the union petitioner a list of the bargaining unit employees' home and cellular phone numbers and personal email addresses;

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