Key Provisions of Collective Bargaining Agreements (Part 2)

Collective bargaining agreements contain many different clauses. This three part series covers what I believe to be among the most important clauses to any labor contract. In Part 1 I discussed the recogition clause, management rights clause, and dues check off clause. Today I cover the no strike / no lock out clause and the sympathy strike clause.

No Strike / No Lock Out Clause A no strike / no lock out clause is pretty straight forward. During the term of the collective bargaining agreement, the union agrees that it will not go on strike. In exchange, the employer agrees that it will not lock the union members out of the workplace. These clauses are intended to do one thing: avoid workplace shut downs. The hallmark of any no strike / no lock out clause is the inclusion of a grievance and arbitration procedure in the contract. Historically union disputes with management resulted in unions striking as a way to voice their opposition; the grievance and arbitration procedure along with a no strike / no lock out clause has eliminated mid-contract strikes while still providing an avenue for unions to voice their opposition to management.

Once a contract expires, however, the grievance and arbitration clauses terminate and unions are able to strike just as employers are free to lock out union members. Although lock outs after the expiration of a contract are legal, they must be completed with precision. Due to the number of restrictions placed on employers, companies that do not consult with legal counsel before locking out their employees are in grave danger of violating the law. Likewise, when unions strike, legal counsel must be consulted to limit the number of strikers, location of picketing, and selection of replacement workers among other critical aspects of surviving a strike.

Sympathy Strike:  A sympathy strike is when union members strike because the same union at a different workplace is on strike. For example, workers who are members of the UFCW in Cincinnati, Ohio who do not have a labor dispute strike because their “brothers” who are members of the UFCW in Columbus, Ohio are on strike because of a labor dispute. Most collective bargaining agreements contain the above no strike / no lock out clause. But certain language must be included in the collective bargaining agreement for employers to be able to stop these dangerous sympathy strikes. I am always amazed when I review collective bargaining agreements that do not prohibit sympathy strikes; make sure your contract isn’t one of them.

Stay tuned for Party III of Key Provisions of Collective Bargaining Agreements coming up next where I discuss subcontracting clauses and union security clauses.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

NLRB Does Not Want HR to Conduct Confidential Workplace Investigations

As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter

 

The NLRB Does Not Want HR to Conduct Confidential Workplace Investigations 

Please don’t shoot the messenger for this one.

The National Labor Relations Board recently held that, subject to certain limitations, employers cannot require confidentiality during ongoing workplace investigations. Specifically, discussing an investigation with co-workers is considered “collective activity” under the National Labor Relations Act and trumps workplace policies of confidentiality during investigations.

The hallmark of a workplace investigation is that the information provided and maintained remains confidential until all the facts are uncovered and a decision is made. While human resource personnel have never been able to promise anonymity in investigations, most policies promise as much confidentiality as possible. These policies are now unlawful according to the NLRB.

In the case at issue, the company’s human resource consultant routinely asked employees who made complaints not to discuss the matter with coworkers while the investigation was ongoing; it also had a “Complaint Form” that requested confidentiality during the investigation of the complained-about activity. As you know, this is routine business practice and was deemed lawful by the Administrative Law Judge who first heard the case. The ALJ upheld the practice by saying that it was justified by the employer’s concern for protecting the integrity of its investigations. Unfortunately, the NLRB overturned the ALJ on appeal and put virtually every company’s internal investigation policies and procedures on the wrong side of the law.

The Board’s holding in this case is a major shift from how companies have traditionally operated. However, it should not be shocking to those of us who follow NLRB developments. The NLRB has recently taken a “blanket is bad” approach to most workplace policies and requires companies to evaluate employee rules on an individual basis. This is no different. Human resources can require confidentiality during ongoing investigations if:

  • A witness needs protection
  • Evidence is at risk of being destroyed
  • Testimony is in danger of being fabricated
  • There is a need to prevent a cover up

While I am glad that the NLRB did not institute a blanket rule, itself, I am left wondering how, in practice, these exceptions to its rule operate. For example, how does an employer learn and then make known to witnesses before being interviewed that the company has the evidence needed to require confidentiality? The short answer is that companies generally will not have this information and thus will not be able to require confidentiality. So employers and labor counsel like me are left to guess what is and is not a lawful request for confidentiality – and given the current trend of the NLRB, I think we all know which side to err on.

What Should HRACO Members Do?

First, review your handbook and other policies regarding investigations and determine if they need modified. In the case at issue, the employer had a “Complaint Form” that employees filled out and on that form it requested confidentiality during the pendency of the investigation. If you have a similar form, it will need revised.

Second, also in the case at issue, the human resource consultant who performed the investigations told most (but not all) employees to keep the information conveyed confidential. Companies whose HR personnel have similar instructions for employees during investigations may want to consider changing those instructions.

Third, if a decision is made to request confidentiality during an investigation, the employer should document its specific reason for the request. Speaking with legal counsel before requiring confidentiality during an ongoing workplace investigation would be prudent, as well.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.