Among the labor law trends that Barran has chronicled in
its Electronic Alerts is the National Labor Relations Board's
("NLRB") expansive interpretation of what constitutes an unlawful
restraint on an employee's exercise of his or her rights under the National
Labor Relations Act ("NLRA"). On April 26, 2013, the NLRB continued
that trend with its decision in Target Corporation, 359 NLRB 103 (April
At issue in the case was a provision in Target's employee handbook that
prohibited solicitations on company premises. Specifically, the provision
banned "[s]oliciting, distributing literature, selling merchandise, or
conducting monetary transactions" in instances when those activities were
done "For personal profit, For commercial purposes, [or] For charitable
organizations" not affiliated with company community relations programs.
The Board ruled that the phrase "[f]or commercial purposes" when
immediately followed by the phrase "[f]or personal profit" could lead
an employee to reasonably construe the policy as a prohibition on
"solicitation and distributions for other organizations, such as
unions." Consequently, the NLRB held, the policy violated Section 8(a)(1)
of the NLRA, which prohibits an employer from interfering with or restraining
an employee's exercise of rights guaranteed by the NLRA.
In the decision, the NLRB also affirmed an administrative ruling that the
company's dress-code infringed on NLRA rights, and overruled the administrative
finding that the company's policy urging employees to alert security when they
saw "people you don't know loitering around the team member parking
area" violated the NLRA.
For Target, the decision carries immediate consequences. The company must
rescind the offending policies in stores nationwide. Additionally, after Target
successfully defeated a UFCW local's efforts to organize a Target store in
Valley Stream, New York, the NLRB is now requiring a second union vote.
For employers nationwide, the NLRB's decision in Target Corporation
underscores the importance of remaining vigilant about employee handbooks and
policies. Seemingly innocuous company policies on subjects which, on their
face, have nothing to do with union organizing may offend the NLRB's broad
readings of Section 8(a)(1). Employers unsure if their policies would withstand
the scrutiny of the Board's expansive interpretations are urged to be proactive
and conduct a comprehensive legal review of their company handbook.
Read more alerts
by Barran Liebman attorneys.
are written by Barran
Liebman attorneys for their clients and friends. Alerts are not
intended as legal advice, but as employment law, labor law, and employee
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