Human Resources News & Insights

This time the NLRB may have gone too far protecting workers’ speech rights

If you’ve been following along on HR Morning, you know the National Labor Relations Board (NLRB) has made some pretty controversial rulings lately in an attempt to protect workers Section 7 speech rights under the National Labor Relations Act. But this time, it may have gone too far. 

Section 7 gives workers at any company (unionized or not) the right to participate in “concerted activity” aimed at improving of their working conditions.

In a nutshell, the rule says employees must be able to freely discuss their working conditions publicly — including topics like pay, managerial treatment, work duties/assignments, the work environment in general, unionizing, etc.

Lately, the NLRB has been on a scorched-earth crusade to find and block any employer action or policy it believes might stymie employees’ Section 7 rights.

But the U.S. Court of Appeals for the D.C. Circuit just threw a cold, wet blanket on a recent NLRB decision that was bound to have employers throwing their hands up in disgrace.

Company’s hat policy challenged

The case involves a World Color Corp. printing facility in Nevada. The company had a safety policy that required any hair that hung past a worker’s collar to be secured to the person’s head in production areas.

To do this, the company allowed employees to wear a baseball cap with the company’s logo on it. No other type of baseball cap was allowed.

A labor union took issue with this rule. It wanted employees to be able to wear the union’s hats. So the union filed an unfair labor practice charge with the NLRB. It said World Color’s hat policy was overly restrictive and infringed upon worker’s Section 7 rights to discuss unionizing.

An administrative law judge for the NLRB ruled in favor of the union, and the NLRB later backed up the judge’s ruling.

The NLRB said it was:

“undisputed that the policy on its face prohibits employees from engaging in the protected activity of wearing caps bearing union insignia.”

The company then appealed the decision in the D.C. district court, which sent the case back to the NLRB for reconsideration.

A win for uniform policies

The court side the case wasn’t as one-sided as the NLRB made it seem.

It’s reasoning: While it acknowledged World Color did have a policy limiting employees hat options to just the one hat, the company’s uniform policy didn’t prohibit employees from accessorizing their uniforms — hats included — with the union’s insignia.

As a result, the court said there was a dispute over whether the company’s policy was overly broad and facially prohibited the wearing of the union insignia.

It ruled:

“[a]though the hat policy restricts the type of hat that may be worn, it does not say anything about whether union insignia may be attached to the hat.”

The district court’s ruling is a win for employer uniform policies everywhere in that it put the NLRB in check when it comes to its broad interpretation of Section 7. It said the NLRB had to do more digging to determine whether the policy was overly restrictive.

What this case doesn’t do, however, is give employers the green light to enforce strict uniform policies.

World Color’s policy, for example, still needs to pass another test, which the NLRB is likely to put it through now. The test will ask three questions of the policy:

  1. Was it put in place due to union activity?
  2. Was it created to restrict union activity?
  3. Would employees interpret the policy as being one meant to restrict union activity?

If the NLRB finds any of these to be the case, it will likely deem the policy illegal.

Cite: World Color Corp. v. NLRB

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