Most

employers think that if they dont run a unionized shop, then they are not subject to following the law established under the National Labor Relations Act. They would be wrong. The National Labor Relations Act gives employees the right to organize into unions. It sets forth the duties and obligations of both employers and labor unions with respect to collective bargaining. The National Labor Relations Board is charged with enforcing the NLRA, and with resolving complaints that the NLRA has been violated by either an employer or a labor union. Usually, the NLRB becomes involved when a union or an employer charges that there has been a violation of the NLRA. Typical violations would be a charge that an employer made a unilateral change in a working condition, or that it retaliated against an employee for engaging in union activity. An employer could file a claim that a labor organization failed to bargain in good faith, or frivolously pursued a grievance against the employer. But the NLRA carries weight in environments where no labor union exists. And as I have written recently, the NLRB is becoming more proactive in focusing on rights of non-union employees in the workplace. Here is another example. A hospital conducted an internal investigation into a matter involving the proper sterilization of surgical equipment. When a piece of sterilizing equipment broke, the employee responsible for sterilizing the surgical equipment was told to use an alternative method. However, the employee refused, saying that the alternative method would not ensure the safety of patients. After he refused, his supervisor filed a complaint asking that he be disciplined. Human resources became involved and began to conduct an investigation. None of the employees involved in the investigation were unionized, and none had union contractual protection. As part of the investigation, the human resources personnel began to interview employees to determine what had occurred with respect to the sterilization process. Following each interview, the HR representative told the employee who had been interviewed that she was not to discuss the investigation or the interview with any co-workers while the investigation was still ongoing. After the employee who was the subject of the investigation was told not to discuss the investigation while it was ongoing, he filed an unfair labor practice charge with the NLRB, even though he was not a unionized employee. The NLRB had jurisdiction to hear the complaint because under the Act, it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees who are engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The Board ruled that instructing an employee not to discuss his interview or investigation with co-workers violated the Act. The Board said that even though the hospital had an interest in protecting the integrity of its investigation, that interest was outweighed by the employees interest in talking with co-workers for the purpose of mutual aid or protection. And that was true regardless of whether a union was present at the workplace.

 The Board did say that a dont discuss order might be appropriate where there was an indication that evidence might be destroyed, or there was a need to stop a potential cover-up. As an employer you need to be aware that the NLRA can be applied against you even if you do not have a union in the workplace, and you must conduct your business accordingly. Eric Brown is an attorney from Waterbury. He can be reached at 203-676- 9110.