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| Labor Relations: Be Careful of Your Language |
| An employee handbook provision inviting workers to report any “harassment” by those attempting to collect union authorization cards violates the National Labor Relations Act (NLRA). Provisions that are “calculated to chill even legitimate union solicitations” are often struck down if they have a tendency to interfere with a protected employee right. In Brandeis Machinery & Supply Company v. National Labor Relations Board, the 7th Circuit Court of Appeals (including Illinois) upheld a finding that the company had committed numerous unfair labor practices (ULP) including the publication of inappropriate language contained in the employee handbook.
Brandeis is a heavy construction and mining equipment manufacturer operating throughout Kentucky and Indiana. Since its inception, the company has been union-free. The dispute started when two newly hired mechanics attempted to organize a union at the South Bend Brandeis facility. When their efforts were rebuffed, the affected union, the International Union of Operating Engineers, filed numerous charges with the NLRB claiming unfair labor practices. Among other things, the union argued that the employer violated the NLRA by including the following language in its “Employee Relations Philosophy” section of the company handbook: “We, as a Company, prefer to deal with people directly rather than through a third party. This is a non-union organization. It always has been and it is certainly our desire that it always will be that way . . . You have a right to join and belong to a union and you have an equal right NOT to join and belong to a union. If any other employee should interfere or try to coerce you into signing a union authorization card, please report it to your Supervisor and we will see that the harassment is stopped immediately.” In defending the handbook provision, Brandeis argued that the proviso was intended to protect workers from harassment by union organizers. After all, they insisted, it is a legitimate goal of the company to protect the interests of their employees and to maintain discipline at its facilities. The 7th Circuit was not persuaded, agreeing with the conclusions adopted by the National Labor Relations Board (NLRB). In the words of the NLRB, Brandeis’ “policy statement invites the employees to report ‘harassment’ by union organizers attempting to get employees to sign authorization cards.” Based on the plain language of the handbook and its placement in the company's 'Philosophy' section, one might reasonably interpret the provision as anti-union. Furthermore, those who adopt this interpretation might 'reasonably conclude' that those who ‘harass’ on behalf of a union may be subject to further review and punishment. Since the anti-union interpretation is 'reasonable' in light of both the wording and the placement in the handbook, the provision flies in the face of protections granted by the NLRA. Under the statute, employees have the right to “solicit on behalf of a union organizing campaign.” In exercising this right, case law has upheld the conduct of union organizers “engaging in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” Thus, employers ‘interfere’ with this right “when they invite their employees to report instances of fellow employees’ bothering, pressuring, abusing, or harassing them with union solicitations and imply that such conduct will be punished.” For the 7th Circuit, the inquiry did not end there. The handbook provision is also defective since it penalizes one group at the expense of another. The Brandeis document prohibits ‘harassment’ by union organizers but fails to address inappropriate behavior of those who attempt to block potential certification. Thus, the provision is not even-handed. Is every handbook provision on this issue barred? No, says the court. Context is everything. General anti-harassment policies are allowed. However, if a reasonable person could interpret a provision as a dictate against union organizing, it may be struck down. What’s the difference? Consider the following handbook provision that did pass judicial muster: “Remember, do not sign a {authorization} card because you are threatened, tell us and we will protect you. It is your right to have a union. It is your right not to have a union. Our Company will try to see to it that your rights are preserved no matter how you choose. Tell us if someone is trying to stop your freedom of choice.” Why is this provision acceptable? Both the NLRB and the 7th Circuit maintain that this language is merely an advisory. Here, the company is proclaiming that it is “available to protect employees from conduct that might restrain or coerce them in exercise of the Section 7 {of the NRLA} rights.” This language differs from the case at bar where the same equal protection “guarantee does not appear in, and cannot be gleaned from, the language employed by Brandeis.” According to one labor law attorney, “This case highlights what has been a traditional approach by the Board to hold that policies requiring or encouraging employees to report any ‘harassment’ by pro-union workers violates federal labor law.” Based on this ruling, management should review employee handbooks to ensure that your provisions “are not calculated to chill” legitimate union solicitations. Susan McComb, J.D., SPHR August 2005 |
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