NLRB Upholds Employee’s Right to Display Pro-Union Slogan and Strikes Down Discriminatory Handbook Provision
March 25, 2019 by Stephanie Platenkamp
In Constellation Brands and Teamsters Local 601 (367 NLRB No. 79 (Jan. 31, 2019), the National Labor Relations Board affirmed that a cellar department employee engaged in protected activity by wearing a vest on which he had written “Cellar Lives Matter” and that the Employer violated the National Labor Relations Act (“Act”) by ordering him to remove it. Additionally, the Board affirmed that language in the Constellation Brands employee handbook describing a bonus as being limited to non-union employees was facially unlawful.
For a period of about two weeks, an employee at Constellation Brands’ Acampo, California facility wore a safety vest at work on which he had written the slogan “Cellar Lives Matter.” Management directed the employee to stop wearing the vest, claiming that the slogan was provocative, offensive, and likely to cause disruption or create a hostile work environment. In addressing the Union’s claim that the Employer unlawfully ordered the employee to remove the vest, the Board first found the employee’s conduct in wearing the slogan on his vest was protected activity under the Act. In so finding, the Board pointed out that the slogan “Cellar Lives Matter” was a direct response to an earlier distribution of shirts by Constellation Brands promoting a pro-employer view-point; the employee created the slogan in context of the recent organizing campaign in order to publicize and emphasize the hazardous working conditions performed by workers in the Cellar department; and the employee displayed this slogan after consulting with his coworkers who had helped him choose the slogan. The Board then determined that the “Cellar Lives Matter” slogan was not so provocative, offensive or incendiary to lose the protection of the Act. To the contrary, the Board found that the employee borrowed the slogan in light of the political events to draw the attention of his coworkers and employer to ongoing workplace issues. Thus, the Board concluded, the Employer unlawfully ordered the employee to remove the vest bearing the slogan.
The Board in the same case also found unlawful language in the Constellation Brands employee handbook stating “all non-union employees” are eligible for the Company’s bonus program. The Board has long held that plans that afford benefits to employees contingent on their non-representation status violate the Act. The Board noted that the violation lies not in offering non-union employees different wages and benefits, but rather in conveying a message that employees who choose union representation are automatically ineligible for certain benefits for no reason other than the fact they chose to be represented.
Constellation Brands has appealed the Board’s ruling to the Seventh Circuit Court of Appeals.
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