button Vol. 5
No. 5
Fall 2000

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Plan To Add 1 Million Union Members
line NLRB Regulation of Nonunion Conduct
line E-mail can lead to legal quagmire
line NLRB -
news about "salting"

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Top Security Concern in 2000

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button NLRB Broadens Regulation of
    Nonunion Employer Conduct

Yes... the National Labor Relations Board (NLRB) is expanding its grip on nonunion employers to include even greater scrutiny of nonunion work settings.

This can be seen through recent decisions that regulate how employers can conduct investigations and what work rules they can maintain even where the employees involved are not represented by a union.

Here are two case summaries to illustrate this point:

  1. Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (7/10/00).

    On July 10, 2000, the Board ruled that employees in a nonunion setting are entitled to have, upon request, a coworker present during an investigatory interview that the employee reasonably believes might result in disciplinary action.

    The Epilepsy Foundation Case stemmed from the discharge of two employees of the Epilepsy Foundation of Northeast Ohio, an organization that provides services to people with epilepsy.

    Unlike most NLRB decisions, the Epilepsy Foundation ruling applies to every employer engaged in interstate commerce, regardless of union status.

    Typically, nonunion employers will, as an essential part of employment investigations, have two managers/supervisors interview a suspected wrongdoer without additional participants in the meeting. In this manner, employers can maximize the likelihood of ascertaining the facts, maintain the confidentiality to the extent appropriate and prove what was said. Now, upon the request of the employee being investigated to have a coworker present, nonunion employers will no longer be able to adhere to this model.

    Employers investigating potential disciplinary situations will now be confronted with a broader spectrum of confidentiality and privacy issues, along with a multitude of sensitive and problematic concerns affecting employer-employee relations. For example, investigating a charge of sexual harassment, already fraught with legal risks, likely will become even more difficult, since employers may be limited in their ability to insist upon privacy and will have increased difficulty controlling the dissemination of critical, sensitive facts.

    Other practical issues include determining what is an "investigatory interview", deciding what to do when the requested co-employee is absent or unavailable, and understanding the limit on the co-employee's conduct during the interview.

  2. Flamingo Hilton-Laughlin, 330 NLRB No. 34 (11/30/99)

    Prior NLRB decisions prohibit nonunion employers from maintaining overly restrictive non-solicitation rules, or rules preventing employees from sharing information concerning their compensation or other conditions in the workplace.

    The Flamingo case decision holds that certain rules established by a nonunion employer are prohibited per se merely because they may have a "chilling effect" on union activities.

    This underscores the vagueness of Board decisions on handbook rules and policies and will likely create new tension between the Board and the courts regarding how far seemingly neutral rules may be regulated by the NLRB in a nonunion setting.

    The Board decision in the Flamingo case addressed an unfair labor practice charge regarding the contents of a nonunion hotel employer's handbook. The charge in question was filed by a union that was not even seeking to organize the hotel's employees.

    The Flamingo case decision now provides a vehicle for unions to engage in a preemptive attack on a nonunion employer as a prelude to a union organizing campaign. A union could file a charge regarding the legality of an employer's policy or handbook rule to demonstrate that the employer has been overbearing in its governance of its employees, in violation of law, thus creating the perceived need for a union.


The NLRB's recent decisions reflect a new trend towards regulating employer investigations and conduct rules in the nonunion setting. They come after President Clinton's changes to the NLRB through his appointments since taking office.

Click here for more info on Clinton Appointees to the NLRB.

This disturbing trend presents new complications for employers.

We would advise nonunion employers to review their rules and policies governing employee conduct, and their procedures for conducting investigations of alleged misconduct.

Failing to do so may subject employers to having discipline and discharge decisions overturned with backpay awarded. It could also give unions seeking to organize their employees a significant strategic advantage.

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