- Labor Board Further Expands Employee Rights in Trio of Cases
- April 15, 2011 | Authors: Kimberly N. Dobson; Roger S. Kaplan; Philip B. Rosen
- Law Firms: Jackson Lewis LLP - Melville Office ; Jackson Lewis LLP - New York Office
Promoting union organizing, continued representation and greater bargaining strength, the National Labor Relations Board has decided a trio of cases that further expands employee rights despite behavior that may be deemed objectionable by employers and past Boards. The Agency turned a blind eye to behavior that can interfere with employee free choice while favoring unions in Terry Machine Co., faulted employers for policy statements having no demonstrable effect on the exercise of employees’ statutory rights in Jurys Boston Hotel, and berated management for trying to restrict expressive activity meant to embarrass the employer with its customers in the interest of mobilizing public opinion for a union in Southern New England Telephone Co.
Pro-union Supervisor Solicitation Does Not Nullify Election Results
Seven different supervisors’ soliciting signatures on a union representation petition did not call for setting aside the election results, the Board held in Terry Machine Co., 356 N.L.R.B. No. 120 (2011). The supervisors “were actively engaged in the union’s organizing drive” and oversaw the work of approximately half the eligible voters in the election. The employer, however, “engaged in an extensive antiunion campaign,” according to the Board.
In deciding the supervisors’ actions were not objectionable, the Board found the effect of any pro-union solicitations was “mitigated” by the employer’s own conduct and did not materially affect the election results. In particular, the Board majority noted the employer threatened to terminate the pro-union supervisors, and the supervisors communicated that threat to the employees, demonstrating that the employer was not backing the supervisors’ actions. Despite the fact that the election took place in 1999, the Board reaffirmed the certification of the union almost 12 years later.
Board Member Brian Hayes dissented. He argued that the supervisors actions were “objectionable and materially affected the outcome of the election.” He disagreed with his colleagues that the employer’s antiunion campaign could mitigate the effect of the supervisors’ conduct in opposing that very campaign. Member Hayes also dissented over the union’s certification saying, “I believe the time has long passed when we can regard the results of that election as a reliable indicator of current employees’ choice on the issue of collective bargaining representation.”
Mere Existence of Objectionable Rules in Employee Handbook Sufficient to Set Aside Decertification Election
Three employer rules regarding solicitation, loitering and wearing emblems, badges and buttons published in an employee handbook alone constituted objectionable conduct and were cause to set aside decertification election results, the Board held 2-1 in Jurys Boston Hotel, 356 NLRB No. 114 (2011).
Approximately nine weeks before a decertification election, the union filed an unfair labor practice charge against the employer alleging that seven rules in its employee handbook were unlawful. The union had not protested any of the rules before the decertification petition was filed. After losing the election by one vote, the union filed objections, challenging the rules.
The hearing officer held that although the rules were objectionable, they “did not require setting aside the election because they were promulgated before the employer recognized the union, were not enforced or cited by the employer during the critical period, and were not shown to have deterred any employee from exercising Section 7 rights.”
But the Board majority disagreed. It held that the employer’s rules regarding solicitation, loitering and prohibiting wearing emblems, badges and buttons were objectionable and found that “[e]ach of these rules, in force during the critical election period, reasonably tended to interfere with employee free choice.” The Board also said that the election was decided by a single vote was proof that these rules could have affected the results.
Board Member Hayes again dissented. He argued that the Board majority did not follow controlling precedent and that the employer’s rules, even if unlawful, could not have affected the election. In addition, he noted that the closeness of the election is a factor that should be taken into account, but it cannot be controlling.
Board Protects Pro-Union T-Shirts that Could Disparage Employer’s Reputation with Customers
It is a violation of Section 8(a)(1) of the National Labor Relations Act to prohibit employees from wearing tee shirts with a message supporting the union during collective bargaining and to threaten and suspend employees who defied the prohibition, even though the message might disparage the employer, the Board held in Southern New England Telephone Co., 356 NLRB No. 118 (2011).
During the course of collective bargaining, employees wore “Prisoner” shirts during the work day, including during visits to customer homes and businesses. The shirt itself was “mostly a plain white T-shirt with ‘Inmate #’ in relatively small print on the upper-left front. On the back of the shirt, two sets of vertical stripes appeared with ‘Prisoner of AT&T’ in between.” Although recognizing employees have a protected right to wear union insignia in the workplace, the employer argued that there were “special circumstances” here that warranted prohibiting the employees from wearing the shirts. It argued the shirts would cause fear and alarm its customers.
The Board disagreed, noting that the “Prisoner” shirt was not reasonably expected, under the circumstances, to cause fright or distress among the employer’s customers because the tee shirt itself could not be mistaken for a prison garb — “the totality of the circumstances would make it clear that the technician was one of Respondent’s employees and not a convict.”
Board Member Hayes dissented, arguing the employer “proved that ‘special circumstances’ justified its selective prohibition on the wearing of these shirts, while generally permitting displays of union affiliation and support.” He gave substantial weight to the “potential for the ‘prisoner’ shirt to alarm customers and thereby damage the Respondent’s reputation.”