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
In Boch Imports, Inc. d.b.a. Boch Honda and International Ass'n of Machinists, Case No. 1-CA-83551 (Jan. 13, 2014), the ALJ ruled that provisions in the employee handbook of a retail automobile dealership ("Boch" or "Company") constituted unfair labor practices in violation of Section 8 (a)(1) of the National Labor Relations Act ("Act").
The introduction to the handbook welcomed employees and stated, "As an employee, you will want to know what you can expect from our Company and what we expect from you. This Handbook provides information regarding our Company's current benefits, practices, and policies as well as some of the Company's expectations regarding your performance."
The unfair labor charges focused on several policies. Prior to the hearing, the employer had revised all but one of the provisions to which the NLRB objected. The ALJ nevertheless entertained the charges that had been filed regarding all the unrevised policies and found that the following provisions constituted ULPs:
- 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.
Although not expressly stated by the ALJ, it appears that the Complaint was made on behalf of employees in the service department, comprised of service technicians who perform repair and maintenance on the cars that are brought into the facility and service advisers who meet with customers to discuss the work that needs to be performed, write up the service orders, and check in the cars for service (e.g., checking the odometer and inspecting the exterior of the vehicle for damage).
The employer required service technicians to wear blue and grey Company-issued jackets and a Company hat. The technicians interact with customers on road tests and sometimes discuss work on a customer's car; in addition, customers can watch the service technicians at work through a large glass window in the waiting area.
The ALJ noted that the employer uniformly prohibited the wearing of any kind of pin or button because of the potential for pins to cause accidental damage to vehicles (e.g., by falling into an engine or scratching a vehicle's interior or exterior). With respect to insignias, however, the ALJ noted that, after the Boston Marathon bombing, the employer conducted a fundraiser for Boston Strong and, on that day, permitted employees to wear Boston Bruins, Boston Red Sox, and similar shirts.
