Ulmer & Berne LLP Partner Says Smaller Businesses Also Face National Labor Relations Act Scrutiny

Business Wire, June 23, 2004

CLEVELAND -- The following is an opinion editorial provided by George S. Crisci, Esq., Ulmer & Berne LLP:

Here's a little known fact that small business owners may find surprising: Even though your workforce may be non-unionized and you do not face a union organizing drive, you and your employees are still subject to the requirements of the National Labor Relations Act (NLRA).

The NLRA, enacted by Congress in 1935, guarantees the right of employees to organize, form unions and bargain collectively with employers without fear of management reprisal.

And the law applies to almost all businesses, including smaller businesses with 20 or fewer employees, of which Ohio has 181,924 businesses. In fact, employers of smaller companies are taking considerable risk if they think they are not subject to the same restrictions as larger, heavily unionized companies such as automobile giants like General Motors and Ford.

Following are several of the concerns employers face even if they are not unionized and regardless of the size of their businesses:

-  If your employees reasonably believe that they might be
      disciplined by management, they are entitled to have a fellow
      employee accompany them to a meeting with management to
      investigate the alleged misconduct.

   -  Your personnel policies might contain provisions that
      constitute unfair labor practices. An "unfair labor practice"
      is any act which interferes with an employee's right to
      organize in a union.

      What constitutes unlawful interference, however, is not always
      clear or simple. The National Labor Relations Board's (NLRB)
      answers to that question fill nearly 70 years and 350 volumes
      of cases and decisions. But some danger zones and risky moves
      are clear - even if employers might find them surprising.

   -  Your loose enforcement of your policies and practices could
      mean that you will have lost the right to stop a union or
      employees from using those policies and practices for
      unionization purposes.

      For example, let's say you have a policy on how employees can
      use e-mail or you have "customary unwritten practices," such
      as allowing schools to fundraise at work. You may not
      discriminate against a union if they follow that e-mail policy
      for unionization purposes or solicitations.

   -  Your desire to involve non-supervisory employees in the
      decision-making process involving employee working conditions
      through joint committees could be an unfair labor practice.

      Such employee-employer collaboration may be considered
      "unlawful domination" of a labor union or illegal "direct
      dealing" with employees about working conditions.

   -  If you do not implement neutral policies before the union
      starts its organizing drive, then it is too late to do so once
      you find out.


Keep an NLRA-Friendly Workplace

Here are some pointers for establishing NLRA-friendly policies:

    --  Review all personnel policies to ensure that they do not
        interfere with an employee's rights under the NLRA.

    --  Establish clear policies regarding employee use of company
        e-mail and permissible solicitation activities.

    --  Ensure that all joint employer-employee committees do not take
        the appearance of negotiations between the employer and
        employees over working conditions.

The bottom-line question is -- "How well do you enforce your policies in an even-handed, consistent and content-neutral manner?" How well you and particularly your first-level supervisors follow this standard will go a long way toward determining whether you run afoul of the NLRB.

George S. Crisci heads the labor practice in the Cleveland office of Ulmer & Berne LLP. He can be reached at gcrisci@ulmer.com or (216) 931-6000.

Ulmer & Berne LLP Description: Ulmer & Berne LLP, established in 1908, is one of Ohio's largest law firms. A full-service firm with 160 attorneys in Cleveland, Columbus, Cincinnati and Chicago, Ulmer & Berne represents publicly traded and privately held companies, financial institutions, pharmaceutical companies, family businesses, international joint ventures and affiliations, investor groups, start-ups and emerging businesses, public bodies and nonprofit organizations. For more information, visit www.ulmer.com.