Overbroad Trucking Handbooks May Equal Unfair Labor Practices!
I recently read an article by Maxine Neuhauser that I thought you would be interested.
At will employment disclaimers in employee handbooks are the norm, but recent decision by the NLRB should remind employers that they are NOT a blanket insulation.
As you read this information, if you are NOT subject to the laws and regulations of being unionized then these decisions do NOT apply. Otherwise, pay close attention because many trucking companies have unions and are subject to the provisions of NLRB
- Confidential and Proprietary Information. This provision prohibited employees from disclosing or authorizing the disclosure or use of any “Confidential Information,” which was defined as including “compensation structures and incentive programs.”
The ALJ found that the Confidential and Proprietary Information provision and, in particular, “the restriction on “‘compensation structures’ and ‘incentive programs’ could lead an employee to believe that his ability to discuss his terms and conditions of employment with fellow employees, the media or a union were limited by this provision” and, therefore, violated Section 8(a)(1) of the Act.
- Discourtesy. This provision included the following prohibition: “All employees are expected to be courteous, polite and friendly both to customers and to their fellow employees. The use of profanity or disrespect to a customer or co-worker or engaging in any activity which could harm the image of the Company is strictly prohibited . . . .”
Although the ALJ found that the first part of the provision was satisfactory, he held that the prohibition against “engaging in any activity which could harm the image of the Company” was “clearly susceptible of being understood to limit employees in their right to engage in a strike, work stoppage or similar forms of concerted activities” and, as such, constituted a ULP.
- Inquiries Concerning Employees. This provision stated, in relevant part, “All inquiries from outside sources concerning employees should be directed to the Human Resources Department. An employee shall not provide personal information of any nature concerning another employee (including references) to any outside source unless approved by the Human Resources Department and authorized, in writing by the employee . . . .”
The ALJ found that this provision clearly violated Section 8(a)(1) of the Act by preventing employees from discussing the employees’ terms and conditions of employment with union representatives and from cooperating with the NLRB, the media, or governmental agencies that might be investigating the Company.
- Social Media Policy. This policy included provisions that:
- prohibited employees from disclosing any information about the Company’s employees or customers;
- required employees to identify themselves when posting comments about the Company or comments related to the Company’s business or a policy issue;
- prohibited employees from referring to the Company in postings that would negatively impact the Company’s reputation or brand;
- prohibited employees from engaging in activities that could have a negative effect on the Company, even if it occurs off Company property or off the clock;
- prohibited employees from using the Company’s logos for any reason;
- prohibited employees from posting videos or photos that are recorded in the workplace;
- required employees to contact the Company’s Vice President of Operations before making statements to the media;
- required employees to provide the Company with access to any commentary posted by employees on social media sites; and
- required employees to write and post respectfully.
With little discussion, the ALJ found that the above provisions of the Social Media Policy constituted ULPs “as employees would reasonably construe these provisions as preventing them from discussing their conditions of employment with their fellow employees, radio and television stations, newspapers or unions or limiting the subjects that they could discuss.”
Solicitation and Distribution. This provision restricted persons who are not employed by the Company from soliciting and distributing literature or other materials at any time on property adjacent to the Company’s premises.
The ALJ characterized the prohibition of solicitation and distribution of materials on public property, i.e., “on property adjacent to the Company’s premises” as a “clear violation” of Section 8(a)(1).
Dress Code and Personnel Hygiene. This provision stated, in relevant part, “Employees who have contact with the public may not wear pins, insignias, or other message clothing which are not provided to them by the Company . . . .”
The Company did not revise the Dress Code policy prior to the hearing.
In determining whether an employer, in furtherance of its public image business objective, may lawfully prohibit uniformed employees from who have contact with the public from wearing union insignia, the Board considers the appearance and message of the insignia to determine whether it reasonably may be deemed to interfere with the employer’s desired public image. [citation omitted]
Because a blanket prohibition does not permit such a weighing process, the ALJ held that the Dress Code policy violated the Act.
talking about a person’s professional life without his/her supervisor present;
negative, or untrue, or disparaging comments or criticisms of another person or persons; and
creating, sharing, or repeating a rumor about another person.
The ALJ in that case had no difficulty in finding that the no-gossip policy was over broad and that Henderson’s termination for violating the policy likewise violated the Act.
The Boch and Laurus decisions illustrate the increased scrutiny that the NLRB has been giving to employee handbooks over the past few years. These and other recent cases show that the NLRB is taking aim at employee handbooks and broadly interpreting whether an employer’s policies and prohibitions would reasonably tend to chill employees in the exercise of their statutory rights under Section 7 of the Act.
Identify the legitimate business reasons for the policies, and tailor them to those purposes.
Eliminate or modify policies that may impede employees’ rights to discuss and challenge the terms and conditions of their employment—e.g., salary and benefits—and to share such information with others.
Review blanket policies that may be over broad, such as prohibiting the wearing of any insignia.
Review policies that may target plainly protected conduct, such as barring employees from discussing compensation, because it fell within the Company’s definition of “Confidential Information,” or its policy against solicitation on property adjacent to, but not on, Company property.
Review expansive and vague prohibitions, such as Laurus’ policy against making any “[n]egative . . . or disparaging comments or criticisms of another person or persons.”
In the meantime have a safe and productive day.