John T. Neighbours, Editor; Carrie D. Storer, Kevin S. Smith, Craig M. Borowski, Stuart R. Buttrick, and Eric C. Papier, Assistant Editors
Baker & Daniels

Vol. 18, No. 6
June 2008

LABOR LAW

Can rules and restrictions imposed by a nonunion employer violate the NLRA?

Brian R. Garrison

In a word, the answer to that question is "yes." As we've discussed in past issues, it's a common misconception among nonunionized employers that the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB) deal with issues involving only unionized employers. That simply isn't the case. Many rules apply to employees regardless of whether their employer is unionized. So it's not uncommon for employers without unions to unknowingly violate the NLRA in their day-to-day operations.

This article discusses a few of the most common ways that employers without unions violate the NLRA by prohibiting or restricting employees from engaging in certain activities. We also detail some significant points and rules that every nonunionized employer should know.

Prohibiting employees from discussing their pay with coworkers

Did you know that forbidding an employee to discuss his pay with fellow employees can violate the NLRA? The NLRB views such discussions as protected activity, and courts have generally agreed. As one court stated, "A rule prohibiting employees from communicating with each other regarding wages, a key objective of organizational activity, undoubtedly tends to interfere with the employees' right to engage in protected concerted activity."

In one case, the NLRB found that the mere existence of such a policy violated the NLRA even though no employees were ever disciplined for discussing their pay. Furthermore, the prohibition need not be a written policy. Oral instructions not to discuss wages can also violate the NLRA. It's important to note, however, that the Act protects only the right of employees to discuss information gained during the course of normal work activity and association. Employees are not entitled to take confidential wage information from the private files of their employers.

Prohibiting employees from discussing internal harassment complaints

In the course of investigating workplace harassment complaints, employers often instruct employees who are interviewed not to discuss the matter under investigation with coworkers. Some employers may even maintain a confidentiality rule or require a confidentiality agreement prohibiting employees from discussing sexual harassment complaints among themselves. The NLRB has called those policies and practices into question.

In a case involving Phoenix Transit System, the NLRB held that a confidentiality rule and the employer's enforcement of that rule restricted the exercise of employees' "protected right to discuss sexual harassment complaints among themselves." At issue was the employer's investigation of sexual harassment complaints about a supervisor.

The employer met with employees, advising them that the investigatory meeting was "confidential" and that matters talked about were not to be discussed, even among coworkers involved in the investigation. It gave interviewees no explanation for the instruction and placed no time limit on it. Eventually, the company determined that the supervisor had engaged in inappropriate conduct and required him to undergo counseling. However, it never informed employees who had complained of the harassment or were interviewed about the outcome of the investigation.

Several months later, another employee complained to a coworker about the same supervisor's conduct. The coworker happened to be one of the employees who had complained to the company earlier. He then detailed concerns about the sexual harassment complaints and the supervisor in a union newsletter article. The article described the experiences of employees who reported the alleged harassment and stated that all persons interviewed had been instructed not to discuss the matter. The employee also asserted that management had done nothing in response to the complaints and that the supervisor was continuing his offensive behavior. The company fired the employee for breaching the confidentiality instruction.

The NLRB held that in publishing the article, the employee was involved in protected concerted activity because he was making an effort to alert fellow employees of alleged misdeeds and injustices being practiced by the employer. It pointed out that the right of freedom of communication is not limited to organizational rights because "non-organizational protected activities are entitled to the same protection and privileges as organizational activities."

The Board noted that if the communications had been published with knowledge of their falsity or with reckless disregard of whether they were true or false, they would not be protected. However, it found that the employer had failed to let employees know the outcome of the investigation. Consequently, the employees had a valid interest and right to discuss the matter among themselves. (The NLRB observed that confidentiality rules might be enforceable in different circumstances, such as when the safety of witnesses might be jeopardized or when evidence might be destroyed or falsified.)

Placing restrictions on wearing or displaying union logos at work

With some exceptions, you generally can't lawfully prohibit employees from wearing or displaying union paraphernalia (i.e., hats, T-shirts, buttons, and stickers) at work. Employers that require employees to wear uniforms, however, may enforce their uniform policy when there is a sound business justification for the requirement (i.e., employee safety, damage to machinery or products, or an unreasonable interference with a public image that the employer has established ― as part of its business plan ― through appearance rules for its employees). Thus, an employee who interacts with customers may be required to wear the employer's hat and shirt exclusively. However, the NLRB has ruled that employees who have no contact with the public cannot be instructed not to wear a union hat or T-shirt.

Even when a uniform appearance can be justified, you can't lawfully prohibit employees from wearing union buttons or stickers unless the display is unreasonably large or the message is obscene or otherwise disparaging. There is one exception to the rule: Employees do not have the right to deface company property (i.e., hardhats, file cabinets, and lockers) with union stickers.

As is the case in enforcing rules regarding bulletin boards and e-mail, you cannot enforce your rules in a discriminating manner. Thus, if you allow your technicians to visit customers wearing an Indianapolis Colts cap, you won't be able to prohibit an employee from wearing a union cap while visiting that same customer.

Bottom line

It's important that nonunionized employers understand that the NLRA applies to them as well as to unionized employers. Thus, when enacting rules or restrictions in the workplace, you must always consider whether they might violate the NLRA.

Copyright 2008 M. Lee Smith Publishers LLC

INDIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems, but rather to provide information about current developments in Indiana employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.