Labor Law Update
By: KAREN G. SCHANFIELD
September 2008
The National Labor Relations Act affects both union and non-union employees. Whether your organization is unionized or not, you should know about the following developments.
Missing Work for Political Advocacy
As the 2008 political season heats up, the General Counsel of the National Labor Relations Board has clarified the limits on employees’ ability to miss work to participate in political demonstrations and similar activities without being subject to discipline. The clarification was prompted by the nationwide “Day Without Immigrants” in 2006, a day on which thousands of workers left their jobs to protest new immigration legislation. It provides timely guidance to employers and applies to both union and non-union workers.
According to the General Counsel, political advocacy is protected under Section 7 of the National Labor Relations Act if there is a “direct nexus” between the subject of the advocacy and a specifically identified concern of the participating employees. This means that employees’ appeals to legislators and governmental agencies about matters directly related to working conditions are protected, while complaints that do not directly involve their working conditions are not. For example, according to the General Counsel, nurses who complain about staffing levels do engage in protected activity while those who complain about the quality of patient care do not.
The next question is whether an employee who engages in protected conduct may be disciplined because of the means the employee uses. As a general rule, employees may not be disciplined for engaging in political advocacy about work-related matters during non-work time in non-work areas, unless the activity disrupts work operations or otherwise interferes with an orderly work environment. However, employees who miss work or stop working to participate in political advocacy may be disciplined. As always, the discipline must be administered in an evenhanded fashion. For example, if employees have been disciplined for missing work for reasons such as staying home to wait for a delivery or a repair, they may be disciplined for missing work to engage in political advocacy as well.
Arbitration of Discrimination Claims
Most employers think that employees have the right to pursue workplace discrimination claims by filing both a grievance and a charge with the Equal Employment Opportunity Commission (EEOC) or its state counterpart. While many employers understandably do not like the “two bites at the apple” approach, it has been commonplace since the U.S. Supreme Court’s 1974 decision in Alexander vs. Gardener-Denver holding that a union cannot waive its members’ rights to pursue discrimination claims before administrative agencies.
Some employers have tried a different approach by including a provision in the collective bargaining agreement requiring employees to choose between arbitrating the grievance or filing a charge with the EEOC or state agency. The Second Circuit recently upheld language in a collective bargaining agreement that stated that an employee may grieve a claim of unlawful discrimination, but that the grievance is not arbitrable if the employee files a charge with the state enforcement agency based on the same set of facts. The employer in the case, Richardson v. Commission on Human Rights and Opportunities, happened to be the state agency charged with enforcing civil rights laws. The Seventh Circuit reached the opposite conclusion in 1992 in EEOC v. Board of Governors. To date, no other circuit courts have weighed in on the issue.
Employers with operations outside of the Seventh Circuit (Illinois, Indiana, and Wisconsin) may want to consider this approach at the bargaining table and also consider revising internal grievance policies that apply to non-union employees.
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