Concerted Activity or Just a Nest of Snakes?

WOCO Frank

I apologize for the length of this post, but I think most of you will find it very interesting.

Last month, we acquired a mom-pop business to add to our chain. As is our procedure, we set it up so the employees would be terminated at the time of the sale and those who had passed muster would be immediately hired by us.

Passing muster involves completing an application, taking a drug test, submitting to a criminal history check, and interviewing.

I set up an interview date prior to the takeover, and informed each employee by a warm and fuzzy letter. When I arrived for the interviews, I was informed by a group of the employees that they would be happy to work for us, but that no one would submit to the drug test or criminal history check, as they regarded those as an invasion of their privacy and a violation of their constitutional rights.

(As an aside, typical job duties require employees to be felony-free to meet specific state regulations.)

Anyway, I informed the group that no one would be hired unless they met the previously-mentioned requirements, and gave them all a second chance. Again, they refused. I then informed each by letter that they would not be considered for employment.

That was last month. We've now been informed that two of the employees told the new store manager that they would be filing an NLRB action, asserting that we did not recognize their mass refusals as "protected concerted activity".

It sounds like the remedy they want is re-employment with back pay, but unless a judge or my boss order that, there's no way in hell it's happening. I'd call our counsel, but I've already shot my budget for that. (That happened when my employee raped and tried to kill a teen hooker while he was on the clock, but I think we've already discussed that one...)

I think I'm okay, since technically they were not our employees, and I don't think the concerted activity provisions of NLRA extend to applicants in this case. Do any of you have any thoughts otherwise, or similar experiences?

Don D

My 2-cents worth: It is delusional for someone to think that all they need to do to avoid company policy is have a 'mass refusal' to follow stated policy and procedure. Boy, that's a stretch of the imagination. If that were the case, our places of business would be rampant with mass refusals to do any and every thing policy dictates. You were within your rights as an employer to state a drug screen requirement and new application procedures including background check. Refusal to cooperate with either or both automatically removes one (or the mass) from the pool of viable candidates. The rights afforded by the NLRA are indeed burdensome on employers on occasion, but thankfully, they don't stretch quite this far into the ridiculous. Even if they were employees and not applicants and even if you did have a union in place you would still have a management right's clause in the contract allowing the company to establish, administer, continue, discontinue or change policies. That includes your right to put a drug/alcohol policy in place and establish an application policy.

bsa

Don is probably right, but your budget may take a hit for more attorney fees to win the battle because NLRB just loves to harrass employers. Stand your ground, I would have done the same thing.

njjel

I agree with the above and at minimum would find the dollars for a telephone consult with a labor attorney because just defending the action brought by the NLRB would be extremely costly. So why not just prevent it? Good luck!

System

They might be able to claim that you, as a successor corporation, were required to go through good-faith bargaining with their informal union over their demands. If you think they'll go to the NLRB, you really should talk with a lawyer.
[url]http://www.hrhero.com/findanattorney.shtml[/url]

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Dave H

I would tend to agree with the previous replys, that speaking with an attorney may be well worth your money. Many people fail to realize that non-union company associates have the right to "engage in concerted activity for the purpose of collective bargaining or other mutual aide or protection". As I understand 'concerted activity' exists when two or more associates act together to protest or complain about some term or condition of employment. So, even in a non-union setting, associates can engage in a protected concerted activity and improper handling of the situation may be found unlawful. Call your attorney to be sure if your particular situation fits that definition.