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HR Watch 2005

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Company policy asking employees to report union “harassment” violated the National Labor Relations Act.

A non-union machinery company violated the National Labor Relations Act because it asked employees to report pro-union activity they found harassing, but not to report anti-union activity that was also possibly harassing. The company’s policy was listed in its handbook under the title “Employee Relations Philosophy”, and referred to the company’s desire to remain union-free. It specifically told employees that if any other employee tried to interfere or coerce them into signing a union authorization card, management would make sure that the harassment was stopped.

After several pro-union employees badgered co-workers about joining the union, the co-workers complained to management. The pro-union workers were counseled to leave their co-workers alone, and the union brought an unfair labor practices charge against the company. The National Labor Relations Board, and then the court, agreed that the company interfered with employees’ right to solicit on behalf of a union organizing campaign. In fact, employees have the right to “engage in persistent solicitation even when it annoys or disturbs the employees who are being solicited.” Citation omitted.

In this case, the company policy singled out union harassment only and discussed it in the part of its handbook dealing with employee relations, not its section prohibiting other types of harassment. There was no previous evidence of threats or other problems at the company concerning the union; employees were given the policy as soon as they were hired. Therefore, the policy served to chill employees’ right to solicit on behalf of a union, because it implied that solicitation could lead to discipline. Yet, anti-union activity was not similarly limited.

There are very specific rules about what an employer may and may not say to employees about unions, and employers should not implement union policies or statements about unions without first consulting an experienced labor attorney.

–Paul E. Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.

[For more information, see Brandeis Machinery & Supply v. NLRB, 412 F.3d 822 (7th Cir. 2005)].

Employer could not bar off-site employees from soliciting for a union in non-working areas of another worksite of the employer.

An automotive company had three plants located close to each other in Northern Michigan. Employees at the three plants were considered a single unit for purposes of bargaining with the union, and employees from one plant sometimes transferred to another. When employees from one of the plants attempted to distribute union materials in the parking lot of one of the other plant locations, management officials asked them to leave, and the union brought charges of unfair labor practices against the company.

The National Labor Relations Board and the court explained that off-site employees have an interest and a right to try to unionize co-workers at another worksite, because if successful, the union would represent employees at all three locations. This is different from non-employee union organizers, who have no personal interest in seeing a union elected, and very limited rights to access worksites. Further, in this case, the employees at all three worksites were similarly situated. They held the same types of jobs, worked at plants close to each other, and were members of a single bargaining unit. Thus, the employer could only prevent off-site employees from soliciting in non-work areas of another plant if there was a compelling business reason to do so. In this case, the company had no such reason.

Like the Brandeis case in the first article, this case highlights another part of the National Labor Relations Act, and further explains the rights held by all employees, whether they are members of a union or not. An employer’s solicitation policy must be carefully drafted to avoid violating the Act.

–Paul E. Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.

[For more information, see ITT Industries v. NLRB, 413 F.3d 64 (D.C. Cir. 2005)].

Casino allowed to bar employees from discussing work on casino floor, but no where else.

After two groups of casino employees got into a disagreement about the casino’s tip-sharing policy, the casino instituted a rule prohibiting employees from discussing the tip policy. The casino also had a written rule barring employees from talking about company issues, other employees and personal problems to or around casino guests. The employees argued that these ruled violated the National Labor Relations Act and the National Labor Relations Board (Board) and a federal appeals court agreed.

The court explained that employees are allowed to talk about working conditions in much the same way as they have the right to solicit for or against union representation at work. However in retail establishments that have customers, including casinos, the employer can limit or prohibit work discussions or solicitations in areas frequented by customers. In the casino, this included the gambling floor, restaurants and bars, and hallways next to the gaming areas. The court disagreed with the casino that it could limit work discussions in other public areas, such as parking lots and bathrooms. Because the casino’s original policy referred to “public areas” it was overbroad and invalid. Finally, the court explained that any employee disciplined under the previous rule had to have the discipline overturned because the entire policy had been too broad. This even included employees disciplined for talking about the tip policy on the casino floor – action that was lawfully prohibited under the new, narrower policy.

This case explains the distinction between “public areas” and “customer service areas” in retail establishments and shows that policies meant to limit work discussions must be narrowly drafted.

–Paul E. Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.

[For more information, see Double Eagle Hotel & Casino v. NLRB, 2005 U.S. App. LEXIS 14106 (10th Cir., July 13, 2005)].

Can clothing stores require employees to buy their clothes to wear at work?

Recently, several large retail clothing stores have been sued over what is a fairly common practice in the industry: requiring employees to wear the store’s clothing while at work. Employees in the lawsuits have reported being required to buy new items every time the store’s inventory changed, and that at times, they were spending their entire paycheck on new clothes for work. Some states, such as California, require the employer to pay for any uniform of “apparel and accessories of distinctive design or color” that workers must wear, and the lawsuits argue that this rule includes clothing worn by salespeople. Another argument is that by requiring employees to spend so much of their paychecks on clothing, the workers’ hourly rate is falling below the minimum wage.

So far, few of the lawsuits have made it all the way to trial. Instead, companies such as Abercrombie & Fitch, J. Jill and Express have paid out millions of dollars to settle large class actions, with individual employees getting anything from $50 or $100, to several thousand dollars for the named plaintiffs in a particular lawsuit. Most legal experts predict that retailers will probably begin either allowing employees to wear any clothing they want, or else providing workers certain items for free that must be worn at work.

Laws about uniform policies cover more than traditional safety gear or other clothing that is only worn on the job. Requiring workers to buy and wear any particular item can get a company in trouble, even if the clothing at issue can also be worn outside of work.

–Paul E. Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.

Article By Seyfarth Shaw LLP, from Monster.com

This article originally appeared on Monster.com. Copyright 2005 Monster.com

HR Watch 2005
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