What qualifies as Section 7 rights and Protected Concerted Activity seems to be expanding with the momentum of a runaway freight train. In one recent case, the NLRB has in essence said that any discussion about wages, benefits, job security (or anything remotely related) is protected, whether or not the conversation is intended to provoke “activity.” In another it determined that union supporters had the right to wear buttons with vulgar or offensive language on them, even in the presence of customers. In yet a third example, workplace rules that require English-only (usually in certain situations) are also coming under scrutiny, and may very well trend down this same path. Violence (and now racism) by union supporters has been exempt from reasonable prosecution for years. Like I said – runaway freight train! Side note: in the last couple of years, we have had growing requests to help train companies in how to investigate and discriminate between actionable violations of company policy and Protected Concerted Activity. With the landscape of what actually qualifies as PCA shifting like a desert mirage, it is important to focus on the principles behind the rules and recent NLRB interpretations. Let us know if we can help with this. The board is also meddling in other areas of labor rules. In mid-May, the board granted the review of a 2012 decision related to the organizing of temporary employees. The case is also connected to the joint employer issue, but extends beyond franchise relationships. The review signals the board’s desire/intent to change the rules, so if you employ temps, you’ll want to keep abreast of this development (the 2012 case is Miller & Anderson Inc.). In another attack on employer policies intended to protect customers (in this case, patients and HIPAA enforcement), two employees fired for accessing a database that contained both personnel information and patient records were ordered reinstated. The two takeaways from the case: if you have sensitive records (patient or customer), you should keep them in separate systems from your personnel files, and if you have policies restricting access or use, they should be very clear so as not to be perceived as suppressing Section 7 rights. Well-meaning congressmen are attempting to slow down the runaway freight train, but it is doubtful there will be much loss of momentum anytime soon. GOP members of the House have proposed an appropriations bill to reduce or restrict funding of the NLRB and the DOL. Unfortunately, funding via appropriations bills has become a thing of the past, being replaced by continuing resolutions, so the measure won’t become anything more than a discussion-starter.
Rep. Earl Carter (R-GA)
