NLRB Notice Draft Comments on Union Insignia, Spying, and Employer Conduct

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54025 interpretation would be reasonable, because it is contrary to the plain language of the notice. The notice states that promises or grants of benefits “to discourage or encourage union support”’ are unlawful. It would make little sense to use such language if the Board had meant that any promises or grants of benefits were unlawful, rather than only those with the unlawful stated purposes. And stating that such promises or grants to * * * encourage union support are unlawful necessarily implies that not all promises and grants of benefits discourage union support. vi. Prohibitions on Union Insignia A few comments suggest that the provision fails to illuminate the conditions under which “‘special circumstances” may exist, including in hotels or retail establishments where the insignia may interfere with the employer’s public image, or when the insignia is profane or vulgar. Another comment indicates that the provision is overly broad because it does not reflect that a violation depends on the work environment and the content of the insignia. All the comments addressing this provision suggest either adding more detail to the provision to narrow its meaning, or striking the provision entirely. Again, the Board disagrees. Employees have a statutorily protected right to wear union insignia unless the employer is able to demonstrate “special circumstances” that justify a prohibition. Republic Aviation Corp. v. NLEB, 324 U.S. 793 (1945). For reasons of format, the notice cannot accommodate those comments suggesting that this provision specify cases in which the Board has found “special circumstances,’ such as where insignia might interfere with production or safety; where it conveys a message that is obscene or disparages a company’s product or service; where it interferes with an employer’s attempts to have its employees project a specific image to customers; where it hinders production; where it causes disciplinary problems in the plant; where it is in an immediate patient care areas; or where it would have any other consequences that would constitute special circumstances under settled precedent. NLEB v. Mead Corp., 73 F.3d 74, 79 (6th Cir. 1996), enfg. Escanaba Paper Co., 314 NLRB 732 (1994). Given the lengthy list of potential special circumstances, the addition of one or two examples of special circumstances might mislead or confuse employees into thinking that the right to wear union insignia in all other circumstances was absolute. And including an entire list of special circumstances, concerning both the wearing of union insignia and other matters (e.g., striking and picketing, soliciting and distributing union literature), would make it impossible to summarize NLRA rights on an 11x17 inch poster. In any event, the Board finds that the general caveat that special circumstances may defeat the application of the general rule, coupled with the advice to employees to contact the NLRB with specific questions about particular issues, achieves the balance required for an employee notice of rights about wearing union insignia in the workplace. vii. Spying or Videotaping Aside from the few comments that suggest the provision be stricken, only one comment specifically addresses the content of this provision. The comment states that the language is confusing because a “‘supervisor might believe it would be permissible to photograph or tape record a union meeting. Another might say that their video camera doesn’t use tape so it’s okay to use.”’ The Board has determined that no change is necessary. In the Board’s view, it is unlikely that a reasonable supervisor would construe this notice language (which also says that it is unlawful to “spy on” employees’ peaceful union activities) as indicating that it is unlawful to videotape, but lawful to tape record or photograph, such activities. Supervisors are free to contact the Board if they are unsure whether a contemplated response to union activity might be unlawful. viii. Other Suggested Additions to Illegal Employer Conduct The Heritage Foundation suggests that the Board add language to the notice informing employees that if they choose to be represented by a union, their employer may not give them raises or bonuses for good performance without first bargaining with the union. The comment suggests that the Board add the following provision “if a union represents you and your co-workers, give you a pay raise or a bonus, or reduce or dock your pay, without negotiating with the union.” The Board rejects this suggestion for the same reason it rejects other comments contending that the notice should include the consequences of unionization in the summary of NLRA rights, above. The National Immigration Law Center suggests that the Board add the following to the notice poster: Under the NLRA, it is illegal for your employer to: Report you or threaten to report you to Immigration and Customs Enforcement (ICE) or to other law enforcement authorities in order to intimidate or retaliate against you because you join or support a union, or because you engage in concerted activity for mutual aid and protection. The Board finds it unnecessary to add this statement. The notice states that it is unlawful for an employer to “fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection (emphasis added) [.]”’ Reporting or threatening to report an employee in the manner described in the comment would be a form of adverse action or threat thereof, and the Board believes that it would be understood as such. d. Examples of Illegal Union Activity The proposed notice contained the following examples of unlawful union conduct: Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to: Threaten you that you will lose your job unless you support the union. Refuse to process a grievance because you have criticized union officials or because you are not a member of the union. Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall. Cause or attempt to cause an employer to discriminate against you because of your union-related activity. Take other adverse action against you based on whether you have joined or support the union. 75 FR 80419. There were only a few comments addressing specific changes to the language in this section of the notice. ALFA criticizes the provision that states that a union may not “threaten you that you will lose your job unless you support the union,” because the proposed language “fails to capture Section 8(b)(1)(A)’s broader prohibition against restraint and coercion.’’ The comment suggests revising the language to state that a union may not “[rlestrain or coerce you in the exercise of your right to refrain from joining a union by threatening to inflict bodily harm or following you to your home and refusing to leave unless you sign a union card.” That comment also suggests adding a provision stating that it is unlawful for a union to ‘promise to waive your union initiation fee if you agree to sign a union card before a vote is taken.” HOUSE_OVERSIGHT_022296