Wyatt Employment Law Report


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NLRB Touts Protections for Non-Union Employees

By George J. Miller

In the past year the National Labor Relations Board’s Acting General Counsel, Lafe Solomon, has attracted a lot of attention in the legal and business community by issuing three memoranda describing how his office has alleged that employers have violated the rights of non-union employees by enforcing social networking policies.  Taking a page from Mr. Solomon’s book, the NLRB itself has now gotten into the act.  On June 19th the Board announced that it has launched a website intended to describe the rights of employees to act together for mutual aid and protection, even if they are not in a union.”  The website address is http://www.nlrb.gov/concerted-activity

The website consists of a graphic map of the United States showing thirteen locations around the country in which it was alleged or eventually found that employers at a variety of types of non-union workplaces had violated the rights of employees under the National Labor Relations Act (“Act”).  All but one of the cases involved employees being fired for engaging in activity protected by the Act, such as complaining about supervisors, working conditions, or compensation or, in one case, simply discussing wages with a co-worker in violation of an unlawful workplace policy prohibiting such discussions.  In each case, the employers either settled early in the process or lost at trial.  The outcome in each case was back pay for discharged employees, offers of reinstatement, and rescission of unlawful workplace policies.  

In the press release announcing the new website, Board Chairman Mark Gaston Pearce is quoted as saying, “We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.”

This website could well spark an increase in the number of unfair labor practice charges filed against non-union employers, particularly if the Board does not also feature cases which were found to have no merit, which it does not appear they intend to do.  So it would be wise for all non-union employers to be aware that they are not beyond the reach of the Act simply because they are non-union.  In particular, any workplace situation involving the possible discipline or discharge of employees should be analyzed in light of the protections afforded by the Act in order to avoid violating employees’ rights and being ordered to pay back pay and offer reinstatement to discharged employees.  At the same time, employers should be aware of the kind of activity that is not protected by the Act.  Unfortunately, the dividing line between the two is often not clearly marked, and a very careful judgment must be made.


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Is that an Escaped Prisoner or the Telephone Repairman at My Door?

By Tyson Gorman

In The Southern New England Telephone Company d/b/a AT&T Connecticut (AT&T East), 356 NLRB No. 118 (2011) issued March 24, 2011, a divided three member panel of the National Labor Relations Board adopted the decision of the Administrative Law Judge finding that AT&T service technicians who were wearing “prisoner” and other protest t-shirts while working to highlight labor issues with the company were engaged in protected activity within the meaning of Section 8(a)(1).

 AT&T had suspended 183 employees for wearing the “prisoner” and two other (“Havoc” and “Scab”) shirts while working. The subject prisoner shirts were plain white and listed only “Inmate #____” on the front and had “Prisoner of AT$T” with vertical stripes on the back.  The company was ordered to post a notice advising employees of their rights to wear the shirts, rescind all suspensions, and pay backpay.

Member Brian E. Hayes observed in dissent, “[i]t is well established that, although employees have a protected right under Section 7 of the Act to wear union insignia while working, an employer may limit this activity if it establishes ‘special circumstances’ that justify the limitation imposed” (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)).  Member Hayes felt the special circumstances exception applied in this case. 

However, the majority, consisting of Chairman Wilma B. Liebman and Member Craig Becker, found that AT& T failed to demonstrate sufficient “special circumstances” to justify prohibition of wearing the shirt and thereby violated Section 8(a)(1) of the Act. The majority determined the shirt “was not reasonably likely, under the circumstances, to cause fear and alarm among [AT&T] customers.” It noted the shirt looked very little like actual prison garb and that the subject technicians normally arrived at customers’ homes, in AT&T branded trucks, only after an appointment had been made and a confirming phone call received.  The majority distinguished this situation from Pathmark Stores, 342 NLRB 378 (2004), where special circumstances were found allowing a grocer to restrict employees from wearing “Don’t Cheat About the Meat” T-shirts while working.