TLA Feature Articles and Case Notes

refusing to cooperate with workplace investigations are unlawful if employees face discipline for not cooperating.9

5.“Bad Mouthing the Boss”

Strongly worded “rhetorical hyperbole” to emphasize disapproval of management is protected by the Act.10 The following comments were all lawful:

• A statement to a supervisor, in the presence of coworkers, that the supervisor is an “egotistical f—er.”11

• A statement to coworkers that the CO was a “cheap son-of-a-bitch.”12

• A letter describing management as “hypocritical, despotic, and tyrannical.”13

• A letter characterizing management as “a—holes.”14

A lot worse has been deemed lawful, but those are not suitable for print.

6. Solicitation and Distribution

In labor law, the terms “solicitation” and “distribution” mean the verbal encouragement of co-workers to engage in protected concerted activity, or the distribution of literature in furtherance of protected concerted activity. Under the Act, employees may:

• solicit other employees during non-working times (breaks, meal periods, etc.); and

• distribute literature to other employees during non-working times and

Endnotes

in non-working areas.15

There is a distinction between “working hours” and “working time.”16 Rules referring to “working hours” are presumptively unlawful.17 Rules referring to “working time” are presumptively valid.18

7. Keeping Off-Duty Employees Off Site

Employers often want to limit access to their premises by off-duty employees. This is lawful if off-duty access is limited inside facilities and working areas, only.19 Employers may not limit an employee’s ability to access the parking lot, and thus cannot prevent the distribution of pro-union propaganda in the parking lot.20

8. Union-Free Philosophy in Handbooks

Employers may convey a preference to remain union-free in their handbooks.21 But, a policy encouraging employees to report union activity or union harassment may violate the Act.22 The NLRB has also held that requiring employees to sign an acknowledgement that they will abide by the terms of a handbook containing a union-free provision violates the Act.23

9. Keeping Non-Employees Off Site

Employers can prohibit access by union representatives to their facilities if:

• it does not discriminate against the union by allowing distribution or solicitation on its premises by other non-employees; and

• there are other available avenues for

the union to reach employees.24

Employers desiring to keep union representatives off-site must have a policy in place, and enforce it, before union organizing commences.25 The imposition of such a rule after union activity begins is illegal.

10. Wearing or Displaying Union Logos at Work

Absent “special circumstances,” employers cannot prohibit employees from wearing or displaying union paraphernalia, such as hats, t-shirts, buttons, and stickers at work.26 “Special circumstances” include situations where the display of union insignia might “jeopardize employee safety, damage machinery or products, exacerbate employee dissention, or the employer has established, as part of its business plan, thorough appearance rules for employees.”27

These laws are just the tip of the iceberg when it comes to labor laws that cover non-union companies.

The Board also has a formal Memoranda of Understanding with the U.S. Department of Justice, the U.S. Department of Labor’s Wage and Hour Division, and the U.S. Federal Trade Commission. These agencies will openly share with each other information that they have on companies obtained through their investigations.

Although the NLRB has been around since 1935, it has never been as active in exercising its authority than it is today.

1 Labor Management Relations Act of 1947, 29 U.S.C. §157.

2 See, Caterpillar Tractor Co., 276 NLRB 1323 (1985) (employee’s conduct lost protection of the Act when he disseminated to coworkers a cartoon containing profanity and depicting a supervisor as a razorback pig with grotesque features urinating on a stick labeled “common low-life worker”).

3 CGLM, Inc., 350 NLRB 974 (2007), aff’d, 280 Fed. Appx. 366 (5th Cir. 2008).

4 Exterior Sys., Inc., 338 NLRB 677 (2002).

5 Carney Hosp., 350 NLRB 627 (2007).

6 Dickens, Inc., 352 NLRB 667 (2008).

7 Wal-Mart Stores, Inc., 340 NLRB 703 (2003).

8 Caesar’s Entm’t, 368 NLRB No. 143 (Dec. 16, 2019).

9 Beverly Health & Rehab. Servs., Inc., 332 NLRB 347 (2000), enf’d, 297 F.3d 468 (6th Cir. 2002).

10 Phoenix Transit Sys., 337 NLRB 510 (2002), aff’d, 63 Fed. Appx. 524 (D.C. Cir. 2003).

11 Union Carbide Corp., 331 NLRB 356 (2000), aff’d, 25 Fed. Appx. 87 (4th Cir. 2001).

12 In re Alaska Cummins Servs. dba Groves Truck and Trailer, 281 NLRB 1194 (1986).

13 Harris Corp., 269 NLRB 733 (1984).

14 U.S. Postal Serv., 241 NLRB 389 (1979).

15 Oaktree Capital Mgmt., 353 NLRB 1242 (2009), aff’d, 452 Fed. Appx. 433 (5th Cir. 2011).

16 Our Way, Inc., 268 NLRB 394 (1983)

17 Id