In another reminder that companies need to carefully phrase policies and rules, the National Labor Relations Board (“Labor Board”) has again found a violation of federal labor law when a company has gone too far in restricting its employees’ rights. In its Employee Handbook, Trump Marina Casino Resort in Atlantic City, New Jersey, prohibited “[r]eleasing statement[s] to the news media without prior authorization…only the following employees, Chief Executive Officer, the respective property’s Chief Operating Officer, General Manager or Public Relations Director/Manager are authorized to speak with the media.” When a union supporter spoke to the media and was quoted in the press, one of his supervisors confronted him about his conduct and reminded him of the policy. The employee was not disciplined.
Was Trump Resort’s action proper? One would think so. However, the Labor Board found that the rule interferes with the right of employees to communicate with the public concerning an ongoing labor dispute. Merely maintaining and enforcing rules restricting employees from speaking to the media about protected concerted and union activities violates Section 8(a)(1) of the National Labor Relations Act.
Trump Resort contended that the rule merely set forth who was authorized to speak to the media. However, the judge noted that the handbook stated that employees would be disciplined for violating the rule. In addition, the director of employee relations and diversity testified that the purpose of the rule was “[t]o prevent any statements that have anything to do with proprietary information or confidential information [such as] customer lists, marketing plans, new table game products, new slot products.” In response, the judge found that the stated purpose had nothing to do with the wording of the rule and the employee’s conduct. Thus, the scope of the rule was too broad and interfered with the employee’s rights.
Importantly, this decision was a unanimous decision by the two members of the Labor Board, one Democratic and one Republican.
If and when the Senate approves three new Labor Board members, we expect the Labor Board to issue similar and more extensive rulings concerning policies in employee handbooks. Therefore, companies should not merely add new rules to handbooks or orally state them without considering the implications under the National Labor Relations Act. A thorough review by counsel experienced in traditional labor law is required.