Jottings By An Employer's Lawyer

Monday, June 18, 2012

The NLRB in the Non-Union Setting: Making A Point

For years I have been a member of seminar planning committees, and inevitably the talk gets round to an NLRA topic. In Texas, that usually meets groans and comments to the effect that no one is really interested because very few practitioners actually deal with union related matters.

Inevitably, one solution was to title the program slot, something along the lines, The NLRA for the Non-union Company. And while that often at least made the program, it was still hard to generate much enthusiasm.

However, the current Board seems intent on getting out the message that indeed concerted activity, not just union activity, is what is protected, including today's launch of a web page describing Protected Concerted Activity, complete with state by state links to cases where the Board has found such activity.

For example, clicking that link and the button located prominently in Texas, pulls up 16-CA-025349:
A supervisor at a dental association was fired after she refused to divulge the names of employees who had anonymously signed a petition protesting top management. The Board found the discharge was unlawful because she had rightfully refused to violate federal labor law by punishing concerted activity. In a settlement, the supervisor and another former employee waived reinstatement in exchange for $900,000 in lost wages and benefits.
It will not take too many stories of that nature to get the word out.

That's a far cry from what life was back in the late 1970's and early 1980's. I can't remember the exact date, but I was in the San Antonio office of the NLRB waiting to see some one and the phone rang.  The secretary answered the phone, and sitting right across from her I could tell that it was an employee calling with a possible complaint. After listening a moment, she asked, "Is there a union involved?" and obviously getting a negative response, hung up the phone with a "Well, we only handle matters where there are unions."

Oh how times have changed.

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In the late 50's and early 60's, Region 21 would assign professionals as "OD" to handle all calls and visits to the office to avoid cases such as you witnessed. One that came in was against an artist's studio, Boehm, in Trenton, where it had fired a group of workers who had complained about the dirty towels in the ladies' room. It resulted in reinstatement and back pay for the workers, with no union at all, just a few employees tired of the boss ignoring complaints. I can say that, in addition to the satisfaction of righting a wrong, the case opened the eyes of the staff to the many land mines buried in Section 7 and Section 8 (a) other than union issues.
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