Our readers are pretty sophisticated and eager to discuss the cases and fact patterns that we blog about to pick out useful advice and/or to advance an insightful critique. Our post about a worker fired for wearing a shirt with the word “Slave” on the front, an allusion to a prior labor dispute, which an NLRB administrative law judge reversed as being in violation of section 7 of the NLRA, was no exception.
Two of our readers conducted an interesting dialogue which we publish below.
Wayne Gregory, a managment and consulting executive in the Philadelphia area, commented:
“Another continuation on Sec. 7 violations of the Act attributed to overly broad policies. I have advised many of my clients to review their HR and daily operations polices with an eye towards policies that prohibit an employees’ Section 7 rights. On its face, I couldn’t see how this was a Sec. 7 issue.
To be fair, the ALJ decision isn’t about the shirt, it’s about the policy enforced in this case. The shirt was a direct product from past, 1993, contentious negotiations and I can see how the ALJ arrived at that decision in this case. While I’m not advocating for this, HR has to really step up their game in this day and age.
Great case and example Richard. Thank you for sharing this.”
Kerry Rieder-McLaughlin, an HR consultant in the Chicago area, responded to Wayne:
“Not know the exact wording of this company’s policy, I have always advised to be as broad as possible when preparing a policy. For example, I would recommend a policy that states you cannot wear t-shirts that have wording on them period and do not reference any reason. I do not know if a broader policy would have held up against the NLRA, but it does not specifically prohibit words that ‘disparage the company.'”
Wayne replied: “Kerry, the actual language was in the decision. Yes, I believe that your policy example is sound and good advice. Then we start to get into a strict dress policy, as many already have, to include workplace uniforms that must eventually cover hats, pins, etc. It’s a slippery slope. But what happens when the company has a golf outing or an off-site event, picnic and staff are wearing company logo shirts or something similar?
Almost a similar situation exists with the company e-mail and employee bulletin board policy over limiting its use to company business only, only to have that overridden when employees freely promote personal fundraisers, e.g. selling girl scout cookies and wrapping paper during the holidays. Many companies have that policy, but few enforce it completely opening them up to the argument that an employer is prohibiting an employee’s Section 7 rights during an organizing campaign or other.
In the end, our purpose is to keep our clients advised, aware and prepared. We all do the best that we can. These cases are almost unavoidable in some environments as I honestly believe that the case is here. In many cases, having a clear, legal, policy manual along with an employee relations program that is supported from the top down will go far to avoid many, not all, of these types of cases.”