Continuing its crackdown on a broad range of employment agreements from social media policies to confidentiality and nondisparagement provisions, the National Labor Relations Board has waded into the world of fashion.
A rule that employees could not wear baseball caps except those with the company's logo (and only facing forward) violated the National Labor Relations Act, administrative law judge William Nelson Cates determined.
In the employee guidelines for Nevada-based World Color Corp., a subsidiary of Quad Graphics Inc., the company included the following rule: "…Baseball caps are prohibited except for Quad/Graphics baseball caps worn with the bill facing forward…" The rule appeared in the section on corporate safety, separate from the dress code.
But "the Board, with court approval, has long held that in the absence of special circumstances employees have a Section 7 right under the Act to wear insignia referring to unions or other matters pertaining to working conditions for the purpose of mutual aid or protection," Cates wrote. "An employer may prohibit the wearing of union insignia by its employees if, and only if, the employer can demonstrate substantial evidence of special circumstances that would outweigh the employees' rights protected by Section 7 of the Act."
"Special circumstances" may include violence, interference with training or production, interference with safety, or unreasonable interferences with the image the employer desires for its employees to project to its customers or suppliers, the ALJ noted. No special circumstances existed in the case of Quad.
The hats had no built-in safety features, the company had not experienced any problems with gang insignias or color symbolism, and the record was void of any interactions between employees at the printing press and customers, Cates wrote.
"I find the Company's hat policy forbids or prohibits employees from displaying union logos, or for that matter other protected messages, on their hats, if they choose to wear hats, thereby restricting employees from engaging in activity protected by the Act," the ALJ concluded.
Cates ordered Quad to rescind the hat policy portion of its employee guidelines and post notice to that effect for employees.
In addition, Cates found a comment made by a supervisor to an employee who was about to be reassigned that "management knew about [your] posts on Facebook" similarly violated the Act. The supervisor and the employee were friends on the social networking site, where the employee had posted comments about Quad and his union.
Although the reassignment was based on production, the employee "could reasonably believe his reassignment was in retaliation for his protected activity and that other negative consequences could follow," the ALJ wrote. The supervisor's comment "interfered with, restrained, and coerced [the employee] in the exercise of rights guaranteed him in Section 7 of the Act and in violation of Section 8(a)(1) of the Act."
Quad must cease and desist from telling employees they are being reassigned from one press machine to another because of the employees' protected concerted social media activities that included comments supportive of the union, Cates ordered.
To read the ALJ's decision in World Color Corp., click here.
Why it matters: The ALJ's decision reiterates the NLRB's broad focus on all aspects of employment documents, from a policy on hats to social media policies to nondisparagement and confidentiality clauses. Employers should consider reviewing their various policies and guidelines with an eye towards achieving compliance with the Board's rigorous efforts on behalf of employee rights.