10/11/2011 - “Great fleas have little fleas upon their backs to bite ‘em, And little fleas have lesser fleas, and so ad infinitum. And the great fleas themselves, in turn, have greater fleas to go on, While these again have greater still, and greater still, and so on.“

-- Augustus de Morgan, Victorian Mathematician.

Tales from O’Seay’s Fables . . .

It had been a long day for Julie, supervisor of 6 employees in the accounting department. One employee named Alice had been particularly “trying,” being generally uncooperative and demonstrating a bad attitude toward her work and toward management. She was unwilling to perform one of her duties, filling in for the receptionist at lunch, because, as she said, this is “not my job,” despite the fact that it was clearly listed on her job description. Around mid-afternoon, Julie called Alice into her office for a “heart to heart” discussion and explained to her one of O’Seay’s first rules of employment, which is that the employer hires you to do what the employer wants you to do, not what you want to do and, if you are unhappy with this idea, we need to help you find a job somewhere else. “You’re being rude,” Alice snorted. Julie, exasperated, told Alice to pipe down and go out and do her job. Alice left, unhappy.

Later that evening, Julie went home and powered up her Apple to check her personal emails and, while there, check in on her Facebook page. To her astonishment and irritation, she found the following posting from Alice on her News Feed page – “This is the crummiest company I’ve ever worked for. My supervisor is named Julie and she is rude and abusive to me and all the others! I cannot stand her!” Other employees had read the post and had commented in a similar vein. Next day, Julie called Alice into her office and fired her for making negative and critical comments about the company on Facebook. A week later, Julie received a notice in the mail, from the National Labor Relations Board, accusing her of an Unfair Labor Practice. “What the heck is the National Labor Relations Board,” Julie thought pensively, “and what is an Unfair Labor Practice?” Later, she found out. The NLRB ordered Alice reinstated with back pay. Julie was appalled.

What is the National Labor Relations Board? As employers, we hear about the Wage and Hour Division, ADA, EEOC, and other enforcement agencies ad infinitum. The National Labor Relations Board, often referred to as the NLRB, is the federal government agency that enforces labor relations regulations. We generally think of this in terms of unions but the NLRB regulations cover both union and non-union employers. As union membership continues to decrease, there is mounting evidence that the NLRB is turning its attention more and more to non-union employers.

In the early to mid part of the 20th century, unions represented more than 40% of all American workers. Today, according the US Bureau of Labor Statistics, that number is just under 12%, mostly in the public sector. Private sector union membership is just under 7%. Union membership has been steadily declining for 50 years and unions are looking for ways to increase membership. The fastest growing labor union in North America is the Service Employees International Union (SEIU), and if you want a chill in your bones, go to Insightful, but chilling. If you are a non-union employer, and wish to remain that way, you should (1) know that you are a union target, (2) be pro-active in establishing pro-employee policies and procedures, where employees don’t want a union and don’t think the need a union to represent them, and (3) train your supervisors and managers in pro-employee union prevention methods. Seay Management can help with Sandy’s workshop, “How to Remain Union Free in a Time of Change.”

The NLRB and You

Here are three ways the NLRB is intruding upon non-union employers.

1. Employment Poster As of January 30, 2012, all employers must post an NLRB poster in a conspicuous location, informing employees of their NLRB rights. These rights include the right to join a labor union and engage in “protected concerted activity.” You can find and download the poster, in both English and Spanish, at

Seay Management Comment – this new poster is clearly not employer friendly and while we would prefer that the NLRB not have this poster requirement, we do not think that, standing alone, it will cause employees to want a union. It will be just like all the other required posters. On the other hand, it is very direct in discussing employee rights under the NLRB and, as others have said in a different context, eternal vigilance is the price of freedom. Employers must be as aware of NLRB regulations as they are of Wage and Hour, EEOC and all of the other employment regulations.

2. What is “protected concerted activity?” According to NLRB regulations, employees have the protected right to discuss their wages, benefits and working conditions among each other, and employers many not restrict or limit those rights. To do so would be an Unfair Labor Practice (ULF).

Thus, if an employee is critical of the employer on Facebook, or other social networking site, this can be protected concerted activity and employees who are fired for such activity, such as Alice, can file an Unfair Labor Practice against the employer.

In the same way, employees must be allowed to discuss their wages, benefits and working conditions among each other. If an employee handbook as a provision saying, “Your wages are personal and you may not reveal your pay rate to any other employee,” this is a violation of the NLRB regulations and could constitute an Unfair Labor Practice. For this reason, we recommend that this language be omitted from employee handbooks.

3. Facebook and other Social Networking Sites. The purpose of these social networking sites is to connect with others; thus, virtually any comment about an employer will be “concerted,” because it either involves other employees or is intended to involve others. We do not recommend dismissing or disciplining an employee for comments made on Facebook, unless those comments go over the line into slander, vilification or defamation and, even then, we would say to proceed very carefully and with prudent advice and guidance. In fact, we recommend that supervisors and managers be prohibited from “friending” employees – this is Trouble waiting to happen. And, we do not recommend a policy in your employee handbook describing what employees can and cannot say on Facebook, et. al., as this is true grist for the Litigation Mill.

The NLRB is a powerful federal government agency with broad powers of enforcement. For example, the NLRB has filed a complaint against Boeing and is attempting to force Boeing to close its new South Carolina, non-union airplane production facility, claiming that Boeing built the plant to retaliate against its union workers in Washington state, who have engaged in frequent strikes. Also, the NLRB supports “card check,” which would allow a union to represent employees without having an election, if more than 50% of the employees signed union cards.

If you have questions about the NLRB regulations, or would just like to talk about how they affect you, contact your Seay Management consultant or email Sandy at

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