Jottings By An Employer's Lawyer

Tuesday, January 04, 2005

Union and Employer Agreement Not Always Enough

Certainly not to deprive an employee of his Section 7 rights. Those rights in case you have not looked at the NLRA lately go both ways:
Employees shall have 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 shall also have the right to refrain from any or all of such activities....
At issue in Lee v. NLRB (4th Cir. 1/4/05) [pdf] was a long standing provision in the collective bargaining agreement between the Communication Workers of America and Bellsouth, which requires certain workers to wear a uniform that has the logos of both Bellsouth and the CWA. Two Bellsouth employees, Gary Lee and James Amburn, who were not union members objected to wearing the union insignia. They filed unfair labor practice charges which were heard, but rejected by the NLRB.

On appeal, the 4th Circuit's approach was like a ping pong:
Employees have a presumptive right to wear union insignia as part of their Section 7 rights to engage in concerted activities related to union organization and collective bargaining.
But, "there is a reciprocal Section 7 right contained in that section’s 'right to refrain' language to choose not to wear union insignia."
However, the right is not unfettered. The Board has held "a company may prohibit display of union insignia where such display unreasonably interferes with its established public image."
Consequently, although not necessary to decide in this case, the Court assumed that an employer, like BellSouth, "may require the display of the union insignia if the absence of the union logo unreasonably interferes with its established public image."
After the back and forth, the issue for decision boiled down to whether the Board's acceptance of the "special circumstances" presented by Bellsouth and CWA justified the restriction on Lee's and Amburn's rights.

In a word -- "no". The rationale presented by Bellsouth seemed reasonable enough:
The display of the union logo on the uniforms signifies a labor-management partnership which makes service interruptions due to labor disputes less likely and represents that their employees are well-trained, well paid, and more experienced with a stable work environment.
The Board agreed. The Court emphatically didn't. Holding instead:
Rather than view the union logo as representing a labor-management partnership which makes labor disputes less likely and a reflection of a stable work environment, the public may view the union logo with suspicion and associate it with service disruptions and labor disputes, [cite omitted] particularly in a right to-work State such as North Carolina.
The argument that the Union has the right to bargain away the rights of those it represents, including non-members, fell on deaf ears as well. True of economic rights, but not rights provided by Section 7.

This is a clear cut victory for the National Right to Work Legal Defense Foundation which represented the two individuals. Although the Board does not always get a lot of respect from the various circuit courts, the rejection here, and so strongly, seems somewhat surprising. Although this is not an issue that is likely to be widespread, it is no doubt one that is important to the CWA and organized labor, which makes me suspect that we have not heard the last of this particular case.

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