Illegal Rules are Not Rules
Q. A rule in our personnel handbook prohibits employees from remaining on the property after work. Can it be enforced against a union rally in the company parking lot?
A. No. A policy that effectively prohibits lawful concerted activity violates the NLRA—even if it was enacted for a legitimate reason. Employees may not be disciplined for violating an illegal rule. Nor may the employer charge an employee with insubordination for ignoring an order to comply.
Q. Our contract says employees can decline overtime requests. To give our bargaining team some heft, can we tell everyone to refuse?
A. Not safely. Section 8(d)(4) of the NLRA prohibits a union from striking for a new contract from the day the union requests negotiations to the day the contract expires. Refusing overtime as a group is considered a strike.
Q. Can management bar us from wearing our uniforms during informational picketing?
A. No, unless a company rule prohibits employees from wearing uniforms off duty and the rule has been consistently enforced.
Refusal to bargain
Q. Can management refuse to bargain until the union stops picketing, holding rallies, and carrying out other contract campaign tactics?
A. No. An employer’s bargaining duty does not disappear because the union engages in concerted activities.
Q. Our personnel policy says “Employees may not use the internet to make disparaging, discriminatory, or defamatory comments about the company or the employee’s superiors.” Can the company apply this rule to employees who attack the company on Facebook?
A. No. Posting contract or other union-related messages on the internet is protected by the NLRA.
Q. The union president told management that unless more progress was made in negotiations she would notify customers to expect a strike. The HR director responded that the company would sue her for “tortious interference.” Is the president at risk?
A. No. Unions can contact customers to seek support, urge a boycott, or warn of a possible strike. A threat to sue an employee or a union for taking part in protected activity is an unfair labor practice.
Q. We made a mistake in one of our leaflets describing the company’s bargaining position. Can we be disciplined for spreading falsehoods?
A. No. An employee cannot be punished for distributing inaccurate literature unless the inaccuracy is deliberate or malicious.
Q. The President of the company is receiving a charity award at a local restaurant. What can we do at the event?
A. You can leaflet and hold stationary banners attacking the President and the company and ask persons not to go in. But you cannot picket the restaurant or disrupt the meal.
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