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Campaign Workshop

NLRB Advice Unit Clears Walmart Letters

April 23, 2014

Walmart Stores Inc. did not violate the National Labor Relations Act when it sent letters to nonemployees, including unions, affiliates, and individuals, warning that they would face legal action if they conducted demonstrations, protests, or picketing on company property, according to a memorandum from the NLRB’s Division of Advice (Wal-Mart Stores, Inc., NLRB Div. of Advice, No. 12-CA-101200, 3/6/14).

The United Food and Commercial Workers and the OUR Walmart organization alleged that the company interfered with employee rights when it sent the letters in late 2012 following prior demonstrations and in anticipation of more protests. But NLRB Associate General Counsel Barry J. Kearney found the claim lacked merit.


Private-Sector Unionization Increased Last Year

March 24, 2014

While the percentage of union membership in the US workforce remained unchanged at 11.3 percent in 2013, there was a slight increase in the number of unionized workers in the private sector for the first time since 2009, according to the new Bureau of Labor Statistics report. Last year 16 million US workers were represented by unions. The percentage of private-sector jobs covered by union contracts increased from 7.3 to 7.5 percent.

Private-sector industries with the highest union membership rates were utilities (25.6 percent), transportation and warehousing (19.6 percent), telecommunications (14.4 percent), and construction (14.1 percent). Private-sector workers least likely to be union members were employed in agriculture and related industries (1 percent), the financial sector (1 percent), and in food service and drinking establishments (1.3 percent).

From the Editor

How to Prevent Employees From Recording and Publicizing Management’s Union Campaign Communications

January 28, 2014

With the proliferation of recording devices available to employees for surreptitious recordings of management discussions and campaign speeches (particularly with Google Glass about to appear in the mainstream), companies may discover that words spoken either privately or openly during a campaign find their way into the hands of an NLRB investigator. The same situation may arise with respect to other private discussions not involving union campaigns but nevertheless potentially of interest to the NLRB as evidence for bringing a charge.

What can employers do to protect themselves from employees’ making and publishing recordings such as these? There are few decisions from the NLRB addressing employees’ surreptitious recording of meetings with management. However, these few decisions hold that whether an employee’s recording of meetings with management is protected under the NLRA depends on whether there is a nondiscriminatory work rule prohibiting such recordings.

In a recent administrative law judge (ALJ) decision that was ultimately adopted by the Board, Interbake Foods, LLC, Case No. 5-CA-33158 (Aug. 30, 2013), the ALJ described the current landscape for when employee recordings are protected under the Act:

My interpretation of what the Board is saying here is that it will leave the question of any sanction for possessing a recorder and secretly recording conversations to the policy judgments of individual employers when they craft their work policies and rules. In other words, such behavior, while clearly unpleasant and sneaky, is not a per se offense of the egregious character that would lose the Act’s protection. However, the fact the conduct is not malum in se [wrong in itself] does not foreclose an individual employer from making that conduct malum prohibitum [wrong because prohibited]. The necessary implication of the Board’s careful wording is that, if this conduct violates a valid, nondiscriminatory work rule, that would render the behavior outside the Act’s protections.

In Interbake, the ALJ found that the employer had a nondiscriminatory rule prohibiting recording devices, so that while the employee’s recordings of conversations with management about the collective bargaining process were concerted activity, they were not protected by the Act.

In December, as reported in last month’s issue, an ALJ found that Whole Foods’ policy prohibiting employees from making any recordings while on work time was lawful and did not interfere with workers’ rights under the NLRA (Whole Foods Market, Case No. 01-CA-096965 (KD) New York-50-13 (2013)). Whole Foods’ recording ban applied in all company areas, including the parking lot and the areas behind and in front of the company’s building. It did not, however, apply when the employees were on nonwork time, such as on break. It applied equally to all levels of management.

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Alfred T. DeMaria

Alfred T. DeMaria

ALFRED T. DeMARIA is a named, senior partner in the NYC law firm, Clifton, Budd & DeMaria and holds a degree from the University of Virginia.  He served as an attorney with the National Labor Relations Board and devotes a major portion of his practice to combating union organizational campaigns and to developing programs to keep companies operating in a union-free environment. Read More

Sarah Magee

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