Home > Regions > North America > The NLRB continues to revisit and rewrite U.S. Labor Law

The NLRB continues to revisit and rewrite U.S. Labor Law

The NLRB, currently comprised of a decided 3-1 split in favor of organized labor (Liebman, Becker and Pierce, the Democrats v. Hayes, the sole Republican appointee), continues to take opportunities to revisit established labor law and issue questionable decisions with a clear bias in favor of unions and organizing. For instance:

  • It is OK for employees to show up at your home dressed as prisoners. In AT&T Connecticut 356 NLRB No. 118 (March 24, 2011).pdf, the NLRB held that the employer violated the NLRA when it suspended 183 employees who dressed as prisoners to protest a labor dispute with the employer while visiting customer homes. The employees, AT&T technicians, showed up at customer homes in response to service calls wearing white shirts that said “INMATE # ____” on the front, and “Prisoner of AT$T” on the back, with vertical stripes.Generally, employers cannot prohibit the wearing of union insignia in the workplace absent “special circumstances.” Special circumstances include situations which may unreasonably interfere with an employer’s image, and can justify limiting statements to customers regarding a labor dispute.

    Here, the majority (Liebman and Becker, with Hayes dissenting) found that no special circumstances existed that would justify prohibiting the AT&T employees from wearing prison garb to customers’ homes. The majority concluded that customers could not reasonably think the employees were prisoners because the customer initiated the call and received a confirming call from AT&T, and because the employees wore I.D. badges and drove company vehicles.

  • It is OK for contracted employees to show up after hours and distribute literature in public, non-work areas of an employer. In New York New York Hotel & Casino 356 NLRB No. 119 (March 25, 2011).pdf, off-duty food service contractors distributed handbills in front of three casino restaurants where they worked. After they refused to leave, the casino had them removed.
    Generally, an employer may exclude solicitation and distribution activities of third parties on its property. By like token, employees, even off-duty, can access their employer’s property. Although the contracted employees were not employees of the casino, they did regularly work at the casino. So the Board (3-1, with Hayes dissenting), made up a new standard.According to the NLRB, the term “employees” under the NLRA does not necessarily mean a particular employer’s employees; it means anyone who is an employee. The NLRB went on to find that an employer can prohibit subcontractors’ solicitation and distribution activities only where the subcontractors “significantly interfere” with the employer’s property or where there is some other legitimate business reason for the exclusion.
  • It may be OK for an employer to be required to turn over to a union confidential witness statements. For over 30+ years, the law has held that witness statements obtained by an employer during its internal investigation of a disciplinary matter do not have to be turned over to a union in response to a grievance (the names of individuals identified likely have to be disclosed, but not the contents of the witness’s statement). The rationale is that employees who cooperate with an employer’s investigation should not be subjected to coercion and undue influence by a union or its members.The NLRB recently invited briefs, Hawaii Tribune Heald 356 NLRB No. 63.pdf (March 2, 2011) to aid the Board in evaluating circumstances in which an employer should disclose such witness’s statements to a union.  Stay tuned to see whether employer and employee protections with respect to internal investigations are subordinated to a union’s access to information.