Policies Violate the National Labor Relations Act

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<p><strong>Philadelphia &mdash; Nov. 8</strong><br />Employers should be aware that common personnel policies &mdash; or the way they are enforced &mdash; could be in violation of the National Labor Relations Act (NLRA), according to Pepper Hamilton LLP, a multipractice law firm.<br /><br />&ldquo;Recent decisions by the National Labor Relations Board and federal courts have held that seemingly harmless personnel policies may in fact violate the NLRA, regardless of whether or not the policies are implemented at a unionized workplace,&rdquo; said Michael J. Canavan, an attorney with Pepper Hamilton. &ldquo;As long as these policies can be reasonably construed to prohibit employees from engaging in activity protected by the NLRA, they will come under scrutiny from the courts.&rdquo;<br /><br />Earlier this year, the National Labor Relations Board heard oral argument in a case that will determine whether employees have the right to use their company&rsquo;s e-mail system, or other communications-based systems, to communicate with each other regarding union matters and terms and conditions of employment. An Administrative Law Judge held in 2002 that The Guard Publishing Company, which publishes The Register-Guard newspaper in Eugene, Ore., could not enforce its communications policy to prohibit employees from e-mailing each other concerning union issues. <br /><br />The unfair labor practice charges were filed by the Eugene Newspaper Guild, which represents about 150 of the company&rsquo;s employees, including reporters, photographers, copy editors, secretaries, clerks, advertising department employees and district managers in the circulation department.<br /><br />The newspaper issued a policy in 1996 stating that all of its communications systems &mdash; including telephones, computers, fax machines and photocopiers &mdash; &ldquo;are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.&rdquo;<br /><br />&ldquo;The NLRB must now decide whether an employer&rsquo;s e-mail system is its own private property and able to be declared off-limits for union purposes, or should be considered the new &lsquo;gathering place&rsquo; entitled to the NLRA&rsquo;s protection of organizing activities,&rdquo; said Canavan. &ldquo;The ruling will have a significant impact on a union&rsquo;s ability to communicate with its members or prospective members. Regardless of the outcome, the decision is expected to be appealed, and the issue may ultimately be resolved by the Supreme Court,&rdquo; Canavan added.<br /><br />For employers who may be facing similar situations or have questions about their current policies, below are some general tips for avoiding NLRA violations:<br /><br />&bull;    Adopt an e-mail policy and enforce it strictly. &ldquo;The policy pertaining to employees using the company e-mail system for personal matters should be enforced strictly and evenhandedly,&rdquo; said Canavan. &ldquo;Employers generally permit some personal e-mail use by employees, but even a limited license to use the company e-mail for non-work-related purposes may be enough to require you to allow the use of the system for union organizing.&rdquo;<br /><br />&bull;    Avoid overly broad restrictions on communication between employees. &ldquo;Employment policies cannot require employees to keep confidential their wages or prohibit them from discussing other terms and conditions of their employment,&rdquo; said Canavan.<br /><br />&bull;    Avoid blanket prohibitions of solicitation and distribution of literature at the work site. &ldquo;Although such activities may at times interfere with business operations, a complete prohibition will violate an employees&rsquo; right to engage in &lsquo;concerted activities&rsquo; related to organizing,&rdquo; according to Canavan. &ldquo;Restrictions on solicitation and distribution should be tailored to allow employees to engage in these activities in such a way that will not disrupt the business.&rdquo;<br /><br />&bull;    Employment policies should include a provision that specifically exempts conduct protected by the NLRA. &ldquo;Otherwise invalid or questionable policies may be cured by a provision that makes clear all other policies must be read so as to not to prohibit activities protected under the NLRA,&rdquo; Canavan said. </p>

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