NLRB Finds Employer Unlawfully Prohibited Employees from Discussing Union

A recent National Labor Relations Board (“NLRB” or the “Board”) decision highlights the well-established rule that an employer violates Section 8(a) of the National Labor Relations Act (“NLRA” or “Act”)[1] by prohibiting employees from discussing unionization, when employees are not otherwise prohibited from discussing other subjects unrelated to work.[2]

Background

Section 8(a)(1) of the Act makes it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7 of the Act].”[3] In turn, Section 7 of the Act gives employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” and to refrain from engaging in such activities.[4] In recent years, the Board has scrutinized employer rules and policies regulating employee conduct as being in violation of Section 8(a)(1) of the Act.

In T-Mobile USA, Inc., the Board found that a call center manager’s statement to an employee that he could not discuss the union when “he [was] supposed to be working” violated Section 8(a)(1) of the Act.[5] The manager’s statement was made to an open union supporter in the context of a union organization campaign.[6] It was undisputed that the employer permitted its employees to discuss non-work related matters when not taking customer calls.[7]

The administrative law judge characterized the manager’s statement as a “rule unlawfully restricting [employees’] ability to discuss the Union while working but not prohibiting them from talking about other [subjects].”[8] Although the majority of the Board questioned the judge’s characterization of the one-off statement as a “rule,” the Board agreed that the manager’s statement was unlawful because employees were permitted to talk about non-work related matters during work hours.

Practical Takeaways

In both union and non-union workplaces, employers may not prevent pro-union solicitation or discussions by employees during breaks or non-working hours. Although employers may prevent their employees from discussing non-work subjects during times employees are supposed to be actively working, such restrictions may not single out unionization. When faced with a unionization campaign, employers should consult with their labor and employment counsel to understand their rights and obligations under the NLRA.

[1] T-Mobile USA, Inc., Case 28-CA-148865, slip op. (Jan. 23, 2017).

[2] Jensen Enterprises, Inc., 339 NLRB 877, 878 (2003).

[3] 29 U.S.C. § 158(a)(1).

[4] 29 U.S.C. § 157.

[5] T-Mobile, Case 28-CA-148865, slip op. at 4.

[6] Id.

[7] Id., slip op. at 14-15.

[8] Id.