Jottings By An Employer's Lawyer

Wednesday, November 10, 2004

A Reminder Once Again - the NLRA Is Applicable in Non-Union Settings

USAA one of the nation's largest insurers was the unfortunate recipient of the D.C.Circuit's reminder that the National Labor Relations Act, which protects concerted activity, is just as applicable in a non-union setting as where organized labor is present. The Court affirmed the NLRB's finding of unfair labor practices arising out of the discharge of an employee for distributing 1,300 flyers to the desks of fellow employees. The flyer raised questions about employees who had lost their jobs in a reorganization. United Services Automobile Association v. NLRB (D.C. Cir. 11/9/04) [pdf]. Not only did the company lose, but it was a quick turn around as the case had been argued only a month earlier. The Board's ruling that was affirmed can be found here.

Among the Court's holdings, that the company's no solicitation rule even if lawful as written, was unlawful as explained and enforced, that the sole purpose of interviewing the individual involved was to find out who had engaged in concerted activity and that even though the employee had been evasive during the questioning, it was not sufficient under the circumstances to defeat her claim.

And sure enough, what all employers fear in defending any no-solicitation case, there was evidence of numerous violations including Avon catalogs. Not mentioned was the other favorite, football pools.

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