Difference between Employee and Non-Employee Off-Duty Access Policies

The NLRB and courts recognize that off-duty employees have greater rights than non-employees when it comes to accessing the employer’s property to engage in protected activity.

The NLRB applies a three-part test to determine if an employer’s off-duty access policy is valid under the National Labor Relations Act. An off-duty access policy is valid only if it: 1) limits access solely to the interior of the facility and other working areas; 2) is clearly disseminated to all employees; and 3) applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activity. In essence, employers may not maintain a rule or prohibit off-duty employees from accessing the exterior areas or other non-working areas of the employer’s premises.

The current NLRB will find that simply maintaining an overly broad off-duty access rule is unlawful. For example, off-duty employees distributed union pamphlets advocating for pay raises to other employees and customers just outside the main entrance of a store. The manager told the employees to leave, they did not leave nor were they disciplined for not leaving. The company had a long-standing policy prohibiting employees from loitering or “hanging out” around the company’s premises when off-duty. This policy prohibiting off-duty employees from hanging out in all areas of the employer’s premises was unlawful.

NLRB Chairman Miscimarra argued in his dissent that in evaluating work rules, the NLRB should place more emphasis on how a rule is actually applied compared to the more amorphous standard of how employees may “reasonably construe” a rule. Miscimarra is currently in the minority of the Board. As new Board members are appointed, the NLRB’s position on access rules and many other controversial issues may change.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

Will New NLRB Stop Protecting Unlawful Employee Conduct?

Something is wrong when the EEOC can find an employer liable for tolerating racist or sexist remarks by employees, and the NLRB can find an employer liable for not tolerating racist or sexist remarks by employees. But that is the quandary employers are left with after eight years of watching the Obama NLRB change laws to protect unlawful employee conduct. Here are some examples that highlight this problem.

  1. Cooper Tire & Rubber locked out employees until a new contract with the union was reached. One evening, a vehicle of African American replacement workers drove by the picket line. One employee picketer shouted admittedly offensive racial insults at them. As a result, Cooper Tire terminated the offending employee for gross misconduct. The union grieved the termination. At Hearing, the ALJ found the termination to be lawful. The union appealed the ALJ’s decision. The NLRB reversed the arbitrator and said that the racist comments, while offensive, did not reasonably coerce or intimidate employees in exercising their rights protected by the NLRA. Cooper Tire has appealed the decision, which is pending before the Eighth Circuit Court of Appeals.
  2. The NLRB found a two-day suspension unlawful for an employee who grabbed his crotch and made a “mean and hateful gesture” while yelling the word “scab” at a female employee, and hitting her car mirror when she left work and crossed the picket line.
  3. The NLRB also ruled against an employer that disciplined a union employee for profane, threatening, and insubordinate conduct during a grievance hearing. That employee repeatedly used the “F” word, referred to a supervisor using an obscenity, attempted to physically intimidate the supervisor, and declared that she could curse, say anything she wanted, and do anything she wanted. The NLRB concluded that the employee’s conduct, although “obnoxious,” did not cause her to lose protection of the National Labor Relations Act.
  4. The NLRB found against a fast food sandwich shop for terminating an employee and warning another employee who hung posters in the store and nearby public places that depicted “sick” sandwich pictures and “healthy” sandwich pictures. The poster stated that since the employees did not get sick days, “We hope your immune system is ready because you are about to take the sandwich test.”
  5. An employer was found to have violated the National Labor Relations Act when it terminated an employee who posted obscene phrase about a manager and his family on Facebook.

Hopefully once President Trump has appointed (and the Senate has confirmed) NLRB Members to the two open slots, that many of the NLRB’s recent decisions that fail to recognize the legitimate business needs of employers will be replaced with ones that balance an employee’s right with an employer’s desire for safe and appropriate workplace rules.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

 

NLRB Says Loud, Profane, Obnoxious, Stalking Employee Discipline was Unlawful

Cheryl Walton, an employee of the United States Postal Service was, for lack of a better term, a troublemaker. She was loud, aggressive, confrontational, and had a reputation for regularly using profanity. During a meeting with her supervisor she became agitated and cut the meeting short. Upset, Walton shook her finger and yelled, “I can say anything I want. I can swear if I want. I can do anything I want.”

Afterwards, Walton started showing up at her supervisor’s office, calling her from the lobby and demanding to see her. Walton even began “closely watching” her supervisor as she arrived for her shift. Walton ultimately received a warning letter for her behavior.

The Board rejected the administrative law judge’s conclusion that Walton had lost protection under the NLRA with a “disturbing pattern of conduct.” The NLRB majority said Walton didn’t lose protection under the National Labor Relations Act despite acting in a way that was “loud, profane, disrespectful, and obnoxious.” “In these circumstances,” the board wrote, “we find that the nature of Walton’s outburst weighs, albeit not by much, in favor of finding that she retained protection of the NLRA.”

In his dissent, Member Miscimrra said the NLRA doesn’t “give an employee carte blanche to invoke the act’s protection, on the one hand, while physically threatening another person, literally, with the other.” “Nor should the board give its own cloak of approval to such conduct, which goes way beyond what anyone would reasonably deem acceptable in a civilized work setting,” he wrote.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Overturned Decision that Pro-Union Buttons Violated Work Rules

The Daily Grill, a “traditional American grill” restaurant in Los Angeles, prohibited its employees from wearing union buttons while interacting with customers. Although employees had been allowed to wear buttons such as “trainer” and “anniversary” pins, the restaurant threatened to discipline or sent home early several employees who, during a union organizing drive, wore one inch in diameter UNITE HERE union buttons at work.

Employees are allowed to wear union pins or buttons at work absent “special circumstances.” Special circumstances where the display of union buttons may jeopardize employee safety, damage machinery or products, exacerbate employee dissention, or unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.

The ALJ held that the Company’s ban was lawful because it fostered the Daily Grill’s public image as a traditional American grill restaurant and that a consistent, customer-driven experience and atmosphere was at the core of the employer’s business model, and the uniform and professional appearance of its servers was part of that model.

On appeal the uber pro-union NLRB disagreed and explained that when it is faced with an employer’s claim that its public image justifies a ban on union buttons, it considers the button’s physical appearance and message to determine if it interferes with the employer’s desired public image. The NLRB found that the employer “presented no evidence on how the Union’s small, inconspicuous, and non-inflammatory buttons would unreasonably interfere with a server’s ability to provide reliable service or interfere with the [restaurant’s] public image.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Worker Complaints Over Tips Not Protected Says NLRB

The firing of a New York airport porter who refused to help a French soccer team with their bags, saying they were “poor” tippers, was legal because the complaint about tips was not a protected concerted employment activity, a NLRB judge ruled Friday.

The NLRB brought the case, claiming that the worker’s complaint about the tips and his refusal to work was a protected concerted activity as a complaint about wages.

But an Administrative Law Judge did not buy that argument and found that issues over tips concern the employee and the customer which are out of the control of the employer. The ALJ ruling said, “In this case, the reason for the refusal to perform work was the perceived dissatisfaction with the customer and not with the employer.” The judge continued, “In my opinion, this was simply an offhand gripe about [the employee’s] belief that French soccer players were poor tippers.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Single Employee Filing Class Action Lawsuit Engages in Protected, Concerted Activity

Remember when the NLRB expanded the definition of protected, concerted activity to times when an employee talks to himself? How about when an employee files a sexual harassment claim for the way a supervisor treated her? Now, the Board has expanded it to times when an employee does not even communicate or solicit assistance of other employees before filing a class action lawsuit.

Now, an employee who files an employment-related class action lawsuit, i.e. a failure to pay employees overtime, engages in protected concerted activity within the meaning of Section 7 of the National Labor Relations Act even though the employee has not previously consulted with other employees about the lawsuit. Historically, for protection, employees needed to engage in “group action” for the “mutual aid and protection” of others, instead of solely for his or her personal benefit.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Employee Who Filed Lawsuit on Behalf of Other Employees Without Their Authorization Participated in “Concerted Activity”

A New York waiter filed a lawsuit against his employer alleging that the restaurant had underpaid its tipped employees in violation of the Fair Labor Standards Act (FLSA) and New York labor law. The waiter filed the action without the consent of any other employees, but he requested that the lawsuit be treated as a collective action under the FLSA on behalf of similarly-situated current and former employees. The restaurant’s general manager immediately took the employee off the restaurant’s work schedule after being served with the suit, effectively terminating him. The waiter filed an unfair labor practice charge.

The administrative law judge found that the lawsuit triggered the Company’s action in terminating the waiter. The question then became: Does a single employee filing a lawsuit constitute protected, concerted activity? The Board thought so, explaining that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore protected by Section 7.” Board Member Miscimarra dissented stating that while a group of two or more employees acting in concert on non-NLRA claims might be protected by the NLRA, this waiter’s individual act of filing a lawsuit was not concerted activity.

This case is reminiscent of a previous case we wrote about in which a teacher making a comment to himself was found to have engaged in concerted activity. [See, “Conversations You Have With Yourself When Alone May Be ‘Concerted Activity”. The Board has steadily expanded the scope of concerted activity such that employers should be concerned that even non-NLRA claims may be protected by the NLRA.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.