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The Expanding National Labor Relations Act and the Non-Union Workplace

This article originally appeared in the Vol. 67, No. 6 / November-December 2011 edition of the Journal of The Missouri Bar Association and has been reprinted with permission.

I. INTRODUCTION1

For most non-union employers and their employees, the National Labor Relations Act (“the Act”)2 is an enigma. Employers typically are not aware of its growing relevance to their workplace. Similarly, their non-union employees typically have no idea that the law protects them. The current National Labor Relations Board (the Board) is engaging in various efforts designed to change this view and is moving forward with reforms that will change the landscape of the future for employers, employees and labor unions. Employers who fail to pay attention to the broad application of the Act do so at their peril.

II. OVERVIEW OF THE ACT

One of many depression era acts of Congress, the Act was passed in an effort to stabilize employer/employee bargaining and union relationships on a national level.3 The Act was amended by the Labor Management Relations (Taft-Hartley) Act in 1947 and the Labor Management Reporting and Disclosure (Landrum-Griffen) Act in 1959. While the primary focus of the Act and its subsequent amendments focused on the relationship between employers, employees and unions in a unionized workplace (or one in which the union was actively organizing), the applicability of the Act to the non-union workplace has always existed. Most private employers and employees are covered by the Act irrespective of their union status.4

III. THE EXTENT OF THE ACT’S PROTECTIONS

In general terms, the Act applies in virtually all private workplaces. The rights under the Act – particularly those contained in Section 7 of the Act – protect employees and their joint or group conduct regarding wages, hours and working conditions. Specifically, Section 7 of the Act provides that employees5 have the right to join (or refrain from joining) labor organizations and to collectively bargain. Section 7 prohibits employers and unions from engaging in specified “unfair labor practices” and establishes an obligation on the part of both parties to engage in good faith collective bargaining. The Act also prohibits employers from interfering with protected activities of employees.6

Significantly, the protection extended to employees by Section 7 of the Act is not limited to the right to engage in union activity or the right to engage in collective bargaining activities.7 The Act’s protections also extend to non-union workplaces where employees engage in activity that is concerted in nature and undertaken for the purpose of mutual aid or protection of fellow employees.8 As one might suspect, the determination of whether conduct is “concerted” or undertaken for “mutual aid or protection” might be relatively straightforward in a unionized setting. However, addressing this issue in a non-union setting can be murky at best. The Board has taken the view that if employee activity is determined to be protected under the Act, it is generally immaterial whether the employees who engaged in such activity were covered by a union contract.

The following situations are illustrative of commonly-occurring workplace scenarios where employee activities were found to be protected by the Act, irrespective of the employees’ union affiliation.

A. Discussions of Wages (and Policies Preventing Such Discussion)

Many employers have policies that provide for confidentiality of information in the workplace. While this can serve a valuable purpose when making efforts to protect trade secrets and similar non-public information, an employer can go too far if it tries to restrict employees from discussing, for example, how much they earn compared to what their co-workers earn. The Board has consistently held that the right to engage in protected activity encompasses the right of employees to discuss their wages because wages are considered a vital term and condition of employment.9 Thus, an employee has the right under the Act to engage in discussions about his or her salary, benefits and insurance. The right exists even where an employer believes those discussions are divisive to the workplace or will have a negative impact on employee morale.

Enforcement of a policy prohibiting the discussion of salaries and wages violates Section 7 of the Act.10 Implementation of such a policy is a violation of the Act even if done to “prevent ‘hurt feelings.”’ Similarly, a policy prohibiting employees from discussing tips (or the company’s tip policy) is unlawful.12

A confidentiality provision in an agreement with an unrepresented employee may interfere with the employee’s rights under Section 7 of the Act.13 On June 22, 2011, the Court of Appeals for the First Circuit affirmed the Board’s decision that a confidentiality provision in an agreement with an unrepresented employee interfered with the employee’s Section 7 rights. Thus, employers should tread lightly when addressing this area of employee behavior.

B. Employee Meetings

Employees who ask questions in a meeting with other employees and any supervisor where terms and conditions of employment are discussed are generally considered to be engaging in protected activity.14 A single employee who raises his hand in a meeting and announces that he or she has “some questions on behalf of [himself] and other co-workers” is engaged in protected activity.15 An employee who protests a change in working conditions by an employer that affects all employees is also engaged in protected activity.

C. Activity by a Single Employee

It can be difficult to determine if an employee is acting alone. However, an employee, acting alone, may also engage in protected activity. While it may seem counter-intuitive that a single employee’s actions would be considered “concerted” – on behalf of or with others – as required to qualify for the Act’s protection, the Board consistently has held that actions by single employees may still qualify for protection.

As discussed in greater detail infra, some written communications by single employees, such as a memo or e-mail, may be protected depending upon the substance of the communication.16 Also, individual action may be protected where an individual employee seeks to initiate, induce, or “prepare for group action.”17 Such individual action is protected as long as it is “engaged in with the object of initiating or inducing … group action ….”18

Whistleblowing” to government agencies may be protected activity, whereas merely exercising individual rights may not be protected. For example, the filing of a workers’ compensation or unemployment compensation claim is not protected activity under the Act.19 Conversely, filing a complaint for overtime with the U.S. Department of Labor’s Wage and Hour Division is protected under the Act.20

D. Communication to Management

Communications to management that have co-authors or are written with the express approval of a co-worker, are more likely to be protected than communications involving only a single employee. In addition, where the communication is written to support another employee’s complaint or to protest ill treatment or favored treatment of co-workers, the communication is more likely to be protected.21 An employee who asks questions only engages in protected activity if the employee is acting for the group as a whole.22

Further, an individual’s activities are protected where the individual employee solicits other employees to engage in group action, even if such solicitations are rejected.23 Similarly, an individual employee’s discussion with another employee about whether to inform management of potentially dangerous working conditions is protected communication.24 An employee who discusses organizing or implementing a collective walkout is protected, even if the discussion was not serious. An employer violates the Act for imposing discipline on an employee for such a discussion.25 In the healthcare setting, the Board has been unwilling to grant employers additional leeway in disciplining an employee who speaks out, protecting, for example, an employee who accused the hospital of jeopardizing the health of mothers and babies at a hospital by changing shifts of employees.26

E. Electronic Mail Communications

Electronic mail, as with other forms of communication, can be protected.27 To the extent a single memo or e-mail contains an employee’s complaint about terms and conditions of employment, it is protected only where it exceeds personal griping.28 However, mere griping has been interpreted narrowly by the Board, which has held that a single e-mail to co-workers expressing a negative view about a proposed vacation policy that resulted in an e-mail discussion about the policy constituted protected activity.29 However, an employer does have the right to prohibit union access to the Company’s e-mail system so long as it does so in a non-discriminatory manner.30

F. Social Media

The most rapidly changing area in which employee activities have been found to be protected by the Act involves the use of social media. Because many social media issues arise in the employment setting, the Board is on the forefront of addressing how far employers can go in regulating employees’ access to and use of social media.

For example, on October 27, 2010, the Board in American Medical Response of Connecticut Inc,,31 issued a complaint against an employer that terminated an employee for posting negative comments about her supervisor on her Facebook page. The posting, done by the employee at her home on her personal computer, elicited supportive comments from her co-workers. The Board investigated her termination based on a finding that her Facebook postings were “concerted activities”32 protected by Section 7. The parties settled on February 7, 2011, before the court could issue a ruling.

In a recent report issued by the Board’s Acting Counsel on August 18, 2011, the Board’s Division of Advice concluded that a car salesman was engaged in protected activities when he posted pictures to his Facebook page and made comments critical of a dealership sales event sales on his Facebook page. According to the report, the posting was a direct outgrowth of an earlier group discussion and vocalized the sentiments of his coworkers. The comments were deemed concerted activity clearly related to the employees’ terms and conditions of employment. Because the employees worked on commission, they were concerned about the impact the employer’s choice of refreshments would have on sales and, therefore, on their commissions.

On September 2, 2011, in the first ruling of its kind, an Administrative Law Judge of the Board found that a Buffalo, New York nonprofit organization unlawfully discharged five employees after they posted comments on Facebook concerning their working conditions.34 After hearing a coworker criticize other employees for not doing enough to help the organization’s clients, an employee posted those allegations to her Facebook page. The initial Facebook post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. The judge ordered reinstatement of the employees after concluding the employees’ Facebook discussion constituted protected concerted activity. The judge determined that the postings constituted a protected conversation among coworkers about their terms and conditions of employment.

On its own Facebook page, the Board confirms that it still relies on a four-part test to determine whether an employer’s social media policy would violate the NLRA. The test considers: 1) The place of the discussion; 2) the subject matter of the discussion; 3) the nature of the employee’s outburst; and 4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.35

Not every Facebook post or Tweet, however, will be considered protected “concerted activity.” In an advisory letter involving Lee Enterprises, Inc., d/b/a. Arizona Daily Star,36 the Board discussed a crime reporter who opened a Twitter account and who posted personal thoughts along with links to his published works. He tweeted thoughts such as: “You stay homicidal, Tucson. See Star Net for the bloody deets.” “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”37 Another tweet called local television “people” “stupid.” The reporter was eventually terminated as a result of his tweets. The Board’s advisory letter stated that the termination was proper due to the fact that the reporter’s Twitter postings did not involve protected concerted activity. Instead, it concluded the termination was caused by the reporter’s “inappropriate and unprofessional” tweets. Thus, employees do not have an unfettered right to post ad hominem attacks or other similar poorly chosen words.

IV. EMPLOYEE HANDBOOKS

Section 7’s protections govern the content of employee handbooks, which might come as a surprise to many employers.38 On August 26, 2011, a unanimous panel of the Board found that the employer violated the Act by maintaining or enforcing the following rules in its Employee Handbook: (1) a provision stating that “employees should only disclose information or messages from these systems [including the Employer’s email, instant messaging, and phone systems] to authorized persons”; (2) a provision stating that “any unauthorized disclosure of information from an employee’s personnel file is a ground for discipline, including discharge”; (3) a provision reading, “voice your complaints directly to your immediate superior or to Human Resources through our ‘open door’ policy. Complaining to your fellow employees will not resolve problems. Constructive complaints communicated through the appropriate channels may help improve the workplace for all”; and (4) a provision threatening employees with disciplinary action for “performing activities other than company work during working hours.”39

A unanimous panel of the Board also adopted the judge’s finding that the employer violated the Act by promulgating, maintaining, or enforcing an oral rule prohibiting employees from discussing with other persons any matters under investigation by its human resources department. The Board decided the Employer did not violate the Act by maintaining or enforcing two rules in its Employee Handbook that threaten employees with disciplinary action for: (1) “indulging in harmful gossip” and (2) “exhibiting a negative attitude toward or losing interest in your work assignment.” The Board’s view was that the employer’s policies either directly interfered with Section 7 rights or tended to “chill” employees’ willingness to exercise those rights.40 Under either circumstance, such handbook policies can be found to violate the Act.

V. LIMITATIONS OF THE ACT

The Board has always sought to draw clear distinctions between individual versus concerted (and, therefore, protected) employee activities and communications. An employee’s purely personal complaints or assertions to management are not “concerted” and are, therefore, not protected even if they involve working conditions that could affect others or if they are matters of common concern to other employees.41 The Act does not immunize disruptive employees merely because they raise an issue of concern to co-workers. However, to lawfully impose discipline, the employer must demonstrate the discipline was necessary to prevent harassment or undue interference with its right to conduct business or to maintain discipline.42 The Board is clear, however, that any discipline imposed must result only from unprotected conduct and must not in any way be connected to the content of a protected communication. Accordingly, where an employee voices complaints in the first person plural on behalf of other employees, the employer must take great care when imposing discipline. Any documentation of the incident and disciplinary form should make clear that it was the disruptive conduct of the employee, rather than the comments themselves, that led to the discipline.

Use of electronic mail is not protected under all circumstances. The use of an e-mail system to break into and alter messages between computer terminals in a hospital, resulting in an interruption in transmissions regarding patient care, was not protected activity.43 E-mail messages to co-workers urging them to cease doing business with a particular company vendor are not protected.44 E-mail messages that violate zero-tolerance policies are not protected when sent with reckless disregard for the truth or falsity of the purportedly factual assertions made in the e-mail.45

Though the Board has consistently protected employees’ rights to discuss safety-related issues, this right does not fully immunize employees from violations of other work rules in all circumstances. An employee, for example, who filed 128 complaints of safety-related matters, publicly complained about the safety conditions of the buses she drove, and spoke out at Board of commissioners meetings, was engaged in protected activity.46 However, the Board upheld her termination after finding that her subsequent use of profanity in violation of a company work rule was sufficient to permit her lawful termination.

VI. EMPLOYEE RIGHTS TO REPRESENTATION DURING INVESTIGATIONS

In 1975, the Supreme Court held that unionized employees have the right to have a co-worker present during an investigatory interview by an employer where the employee reasonably believes discipline may result.47 In 1982, the Board found that non-union employees enjoyed this so called Weingarten right.48 Three years later, the Board reversed course in Sears, Roebuck & Co.49 and found that Saection 7 did not compel the presence of a representative in the interview of a nonunion employee. Sears, Roebuck remained the law until 2000, when the Board decided Epilepsy Foundation of North East Ohio.50 This decision brought the Board full circle, again holding that non-union employees were entitled to Weingarten rights.

In accordance with the Board’s holding in Epilepsy Foundation, a non-union employer desiring to conduct an investigative interview was again required to be cognizant of an employee’s rights under Weingarten.51 In the event an employee asserted this right, the employer had three options: honor the request; decline to interview the employee; or advise the employee of the right to meet with the employer without representation. However, if the employee were to refuse, the employer could inform the employee that it would not have the benefit of hearing the employee’s account when deciding whether discipline should be imposed.52

On June 9, 2004, the Board made its fourth policy reversal and, in a 3-2 ruling, held that non-union employees do not have a right to have a co-worker present during an investigatory interview. In IBM Corp.,53 the Board expressly overturned Epilepsy Foundation. In accordance with this decision, non-union employees again do not have the right to insist on a co-worker’s presence for an investigatory interview.

In IBM Corp., the Board reasoned that analysis of the Weingarten issue is properly conducted under Section 9 of the Act, which is narrowly focused on the rights of union-represented employees. In so doing, the Board may have set the stage for the Supreme Court to intervene yet again as it did nearly 30 years ago when it originally decided Weingarten.

While it would appear that non-union employers are now free to conduct investigatory interviews without consideration of the rights afforded employees under Weingarten, the National Labor Relations Board has shown a willingness to frequently reverse course. Thus, non-union employers should not presume that employee Weingarten rights will stay dormant for long.

VII. NOTIFICATION TO NON-UNION EMPLOYEES OF SECTION 7 RIGHTS

On August 25, 2011, the National Labor Relations Board issued a final rule obligating the vast majority of private sector employers to notify employees of their rights under the National Labor Relations Act.54 The purpose of the notice is to inform employees of their rights to organize, form, join or assist a union, to bargain collectively with their employer, and to discuss their wages, benefits and other terms and conditions of employment with their co-workers or a union. The new rule covers not only union workplaces, but non-union workplaces as well. Employers must fully comply with the rule by November 14, 2011, which includes posting a Notice of Rights in a conspicuous location in the workplace.55 Employers who customarily post personnel rules or policies on an internet or intranet site must also provide a link to the rights poster from those sites.

The rule will pose new challenges for non-union employers and make it harder for all employers to defend themselves against allegations of unfair labor practices. Ignoring the rule’s requirements can have significant consequences on employers such as tolling the six month statute of limitations period for filing a Charge against the employer for unfair labor practices. An employer’s knowing violation of the rule can be used against the employer as evidence of unlawful motive in anti-union discrimination and other unfair labor practice litigation.

Employers should take immediate steps to determine whether they are subject to the rule. Covered employers must be in full compliance by November 14, 2011. Human resource professionals, executives, supervisors should be trained on how to properly respond to employees’ questions about their NLRA rights and how to properly address union related activities in the workplace.56

VIII. CONCLUSION

For many years, employers without union-represented employees presumed that the Act did not apply to their workplace. However, as illustrated by the cases cited in this article, employers subject to the Act ignore its protections at their peril. With the notable exception of the recent IBM Corp. decision, the Board has grown increasingly comfortable expanding employees’ Section 7 rights and applying the Act to non-union employees. Accordingly, employers are well-advised to become informed about the powerful statutory protections afforded employees, union and non-union alike, under the National Labor Relations Act.

ENDNOTES

1Seven years have elapsed since the authors first addressed this topic in this Journal. While much of that article remains applicable, recent developments in a fluid legal landscape warrant an update to address the impact of National Labor Relations Act on non-union employers.

229 U.S.C. §§ 141-188.

329 U.S.C. § 151. “It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” Id.

4The act covers employees of all employers whose business affects interstate commerce except the following: agricultural and domestic workers, independent contractors, employees of a parent or spouse, and supervisors. 29 U.S.C. § 152. The NLRB has established certain relatively low revenue thresholds for determination whether a business affects interstate commerce. See “Guide for Hearing Officers in NLRB Representation and Section 10(k) Proceedings.” § IV. (September 2003) available at http://www.nlrb.gov/sites/default/files/documents/44/hearing_officer_guide.pdf (last visited September 19, 2011).

5The Act’s Section 7 rights are guaranteed only to “employees.” Workers not included in the Act’s definition of employee include agricultural workers, independent contractors, supervisors and other managerial employees.

6Note that the NLRB is vested with broad remedial authority including injunctive relief, reinstatement of discharged employees with or without back pay, and interest on the back pay award. 29 U.S.C. § 162.

7N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 8 L.Ed.2d 298, 82 S.Ct. 1099 (1962).

8See also In re Caval Tool Div., 331 NLRB 858, 863 (2000), enfd. N.L.R.B. v. Caval Tool Div., 262 F.3d 184 (2d Cir. 2001) (Board finds comments regarding break policy protected activity, noting that “the objective of ‘initiating … or … inducing group action …’ may be inferred from the context of the group meeting.”); United Enviro Systems, 301 NLRB 942, 944 (1991) decision supplemented by United Enviro Systems, Inc. 314 NLRB 1130 (1994) and United Enviro Systems, Inc. 323 NLRB 83 (1997) (complaints voiced at weekly sales meeting conducted by employer’s supervisors considered to be protected activity); Whittaker Corp., 289 NLRB 933, 934 (1988) (objections voiced at meeting of employees called by employer to announce change in policy found to be protected activity); Ontario Knife Co. v. N.L.R.B., 247 NLRB 1288, enfm’t denied, 637 F.2d 840 (2d Cir. 1980).

9Triana Indus., Inc., 245 NLRB 1258 (1979).

10In re Labinal Inc., 340 NLRB No. 25, slip op. (2003).

11In re Alaska Ship and Drydock, Inc., 340 NLRB No. 95, slip op. (2003).

12Double Eagle Hotel & Casino, 341 NLRB No. 17, slip op. (2004), enfd. Double Eagle Hotel & Casino, 414 F.3d 1249 (10th Cir. 2005), cert. den. 546 U.S. 1170 (2006).

13 NLRB v. Northeastern Land Services, 2011 U.S.App. LEXIS 12678 (June 22, 2011)

14Avery Leasing, Inc., 315 NLRB 576, 580 fn. 5 (1994); In re Bergensons Property Services, Inc., 338 NLRB No. 127 (2003).

15In re Air Contact Transport, Inc., 340 NLRB No. 81, slip op. (2003); see also Neff-Perkins Co., 315 NLRB 1229, 1232 (1994) (questions relating to quality of equipment and the setting of employees’ wage rate found to be of “common concern to all employees,” and thereby indicative of protected activity).

16If an employer allows employees to use its communications equipment for non-work related purposes, it may not validly prohibit employee use of communications equipment for § 7 purposes. In re Fleming Cos., Inc., 336 NLRB 192, 209 (2001), enf’d in part. Fleming Cos., Inc. v. N.L.R.B., 349 F.3d 968 (7th Cir. 2003).

17Meyers Indus., 281 NLRB 882, 887 (1986), enf’d, Prill v. N.L.R.B., 835 F.2d 1481 (D.C. Cir. 1987) (“Meyers II”)., cert. den. 487 U.S. 1205 (1988). A work stoppage by a single employee may be considered protected “concerned” activity by the Board if the reason for the work stoppage is to bring group or collective concerns to the attention of management. See e.g. Webster’s Men’s Wear, 222 NLRB 1262, 1265-66 (1976).

18Mushroom Transp. Co. v. N.L.R.B., 330 F.2d 683, 685 (3d Cir. 1964); Oakes Machine Corp., 288 NLRB 456 (1988); enf’d in part, NLRB v. Oakes Mach. Corp., 897 F.2d 84 (2d Cir. 1990).

19Certain state law protections may, however, apply. See e.g. § 287.780. RSMo 2000; Stephenson v. Raskas Dairy, Inc., 26 S.W.3d 209 (Mo. App. E.D. 2000), cert. den. 531 U.S. 1152.

20Central Ga. Elec. Corp., 269 NLRB 635 (1984); Beardon and Co., Inc. d/b/a D.A.Collins Refractories, 272 NLRB 931 (1984); Triangle Tool & Engineering, 226 NLRB 1354 (1976).

21Churchill’s Restaurant, 276 NLRB 775 (1985); Independent Stations Co., 284 NLRB 394 (1987). Employees may be protected even when “wages or benefits” are not discussed. In Bethlehem Temple Learning Ctr. Inc., 330 NLRB 1177 (2000), the Board found a violation of the Act where an employer terminated employees for: a) complaining in a group meeting about a non-competition agreement they were ordered to sign; and b) meeting in the parking lot to discuss the agreement.

22Club Monte Carlo Corp., 280 NLRB 257 (1986), enf’d, Club Monte Carlo Corp. v. N.L.R.B., 821 F.2d 354 (6th Cir. 1987) (a group discussion followed by a group decision to make a group inquiry, and implementation of the plan through an employee acting as a spokesperson sufficient to be protected).

23 El Gran Combo, 284 NLRB 1115 (1987), enf’d., El Gran Cambode Puerto Rico v. N.L.R.B., 853 F.2d 996 (1st Cir. 1988); Circle K Corp., 305 NLRB 932 (1991). enf’d, Circle K Corp. v. N.L.R.B., 989 F.2d 498 (6th Cir. 1993).

24Consumers Power Co., 282 NLRB 130, 131 (1986). The safety-related activity need not be joint but it must involve discussions about safety-related issues between two or more employees. Systems With Reliability, Inc., 322 NLRB 757 (1996).

25In re JCR Hotel, Inc., 338 NLRB No. 27 (2002), enf’d, 342 F.3d 837 (8th Cir. 2003).

26St. Luke’s Episcopal-Presbyterian Hospitals, Inc., 331 NLRB 761 (2000). The employer was ultimately successful before the 8th Circuit in seeking review of the Board’s decision, though the legal analysis underpinning the 8th Circuit’s decision has not been rejected by the Board in later cases. See St. Luke’s Episcopal-Presbyterian Hospitals, Inc. v. N.L.R.B., 268 F. 3d 575 (8th Cir. 2001).

27See E. I. du Pont de Nemours & Co., 311 NLRB 893 (1993) (Employer committed an unfair labor practice by discriminatorily denying access to the e-mail system for distributing union literature and notices while at the same time permitting employees to use the e-mail system to communicate with their fellow employees on a large number of personal topics and concerns.) See also, Guard Publishing Co. v. N.L.R.B., 571 F.3d 53, 59-61 (D.C. Cir. 2009) (Employer committed unfair labor practice by enforcing e-mail policy with respect to an e-mail message in a manner that discriminated against the union.) Richdel, Inc., 265 NLRB 467 (1982); Natural Wax Co., 251 NLRB 1064 (1980). Timekeeping Systems, Inc., 323 NLRB 244 (1997).

30The Guard Publishing Company d/b/a The Register Guard, 351 NLRB 70 (2007).

31Case No. 34-CA-12567 (http://www.scribd.com/doc/41010696/American-Medical-Response-of-CT-NLRB-Nov-2010, last visited July 1, 2011.)

32 Id. at ¶ 11.

33Memorandum OM 11-74, Report of the Acting General Counsel Concerning Social Media Cases, August 18, 2011, http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases, last visited on September 18, 2011.

34See, http://www.nlrb.gov/news/administrative-law-judge-finds-new-york-nonprofit-unlawfully-discharged-employees-following-fac, last visited September 18, 2011.

35NLRB Facebook post (http://www.facebook.com/NLRBpage/posts/141052949280338, last visited on September 19, 2011.)

36http://www.employerlawreport.com/uploads/file/Lee%20Enterprises%20Advice%20Memo.pdf (last visited on September 19, 2011.)

37Id., at *3.

38For example, the Board has found violations of the Act in non-union settings over handbook provisions. U-Haul Co. of California, 347 NLRB No. 34 (2006) (finding a violation due to an overly broad mandatory arbitration policy).

39Hyundai America Shipping Agency, Inc., 357 NLRB No. 80, p.2 (2011).

40Id.

41Northeastern Dye Works, 203 NLRB 1222 (1973). Goodyear Tire & Rubber Co., 269 NLRB 881 (1984). See, e.g., United Pacific Reliance Insurance, 270 NLRB 981 (1987), enf’d Whitman v. N.L.R.B 767 F.2d 120 (9th Cir. 1985) (employee’s wage protest, promoted through memorandum distributed to all employees, was purely personal; wage policy was a matter of interest to a number of employees and one of considerable impact on employees generally, however, employee participation insufficient to establish common cause); Alex R. Thomas & Co., Inc., 333 NLRB 153 (2001) (employee’s complaints regarding, inter alia, overtime and bonus policies not protected; no other employees voiced similar complaints, felt policies were unfair, or were adversely affected by policies); United Ass’n of Journeymen and Apprentices of the Plumbing and Pipefitting Indus. of the United States and Canada Local Union No. 412, AFL-CIO, 328 NLRB 1079 (1999) (employee’s complaints regarding particular pension plan strictly personal; employee did not act on behalf of others, nor did any employee make common cause with her).

42An employer need not tolerate employee misconduct that is flagrant or that renders the employee unfit for employment even where activity would otherwise be protected by § 7; see In re Intern. Bus. Machines Corp., 333 NLRB 215 (2001), enf’d Intern. Bus. Machines Corp. v. N.L.R.B., 31 Fed.Appx. 744 (2d Cir. 2002); Eckert Fire Protection, Inc., 332 NLRB 198 (2000).

45Washington Adventist Hospital, Inc., 291 NLRB 95 (1988).

44Electronic Data Systems Corp. 331 NLRB 343 (2000).

45In re Sprint / United Management Co., 339 NLRB 1012 (2003).

46Transit Management of Southeast Louisiana, Inc., 331 NLRB 248 (2000).

47NLRB v. Weingarten, Inc., 420 U.S. 251, 43 L.Ed.2d 171, 95 S.Ct. 959 (1975).

48Materials Research Corp., 262 NRLB 1010 (1982).

49274 NLRB 230 (1985).

50331 NLRB 676 (2000), enf’d, in relevant part, Epilepsy Foundation v. N.L.R.B., 268 F.3d 1095 (D.C. Cir. 2001), cert. den. 536 U.S. 904 (2002).

51Employers are not required to advise employees of this right, however, nor are they obligated to preemptively provide a co-worker for the meeting. Simply put, the employee must invoke the right or it is waived. Though no decision directly on point has been issued, the Board has suggested that Weingarten rights may apply to an employee who is asked to take a drug test. In re Turner Const. Co., 339 NLRB 451 (2003).

52Southwestern Bell Telephone, 251 NLRB 625 (1980). But the Board has held that where an employer informs an employee of a disciplinary action and then questions the employee to seek information to bolster that decision, the employee’s right to representation applies. Becker Group, Inc., 329 NLRB 103, 107 (1999).

53341 NLRB No. 148, slip op. (2004).

54http://nlrb.gov/news/Board-issues-final-rule-require-posting-nlra-rights, last visited on September 18, 2011.

55A copy of the required posting may be downloaded at http://nlrb.gov/news/nlrb-poster-employee-rights-now-available-download, last visited on September 18, 2011.

56Litigation seeking to enjoin the requirement to post the poster has been filed and is ongoing.