Pyle Rome Attorneys Convince NLRB Judge To Order That Macy's Rescind Unlawful Rules And Notify All Employees About Corrected Rules

An administrative law judge of the National Labor Relations Board has agreed that the employee handbook of retail titan Macy's violates federal labor law. Attorneys Alfred Gordon O'Connell and Jillian Ryan filed a brief in support of the unfair labor practice charge filed by Pyle Rome Ehrenberg, PC client UFCW Local 1445. They persuaded the judge to order Macy's to notify all of its employees across the country that it has changed its unlawful rules and to post a notice in all its U.S. stores acknowledging that the employer's violations of the National Labor Relations Act (NLRA).

Most private-sector employees have a right to act in concert with other employees - which could include a union - about terms and conditions of employment. The NLRA prohibits most private-sector employers from issuing rules that prohibit employees from forming alliances with co-workers, joining unions or engaging in union activity. While most employers are savvy enough not to prohibit this activity outright, many try to undermine these protections by issuing broad rules that have the practical effect of discouraging worker solidarity and union activity. Therefore, the National Labor Relations Board has interpreted the NLRA to also prohibit employers from issuing rules that could reasonably be interpreted to ban what is known as "concerted, protected activity."

Here, Macy's employee handbook prohibited employees from divulging information about employees, vendors and customers to outsiders and from using the company logo or trademark. The Handbook also required that employees to notify Macy's Human Resources Department (HRD) before participating in a government investigation.

The judge agreed with Attorneys O'Connell and Ryan that these rules are unlawfully overbroad. Employees could reasonably interpret these rules as prohibiting them from sharing information about unions and co-workers, such as identifying other pro-union employees to a union. The rules could easily be read to prohibit employees from talking with one another about terms and conditions of employment -- activity protected by the NLRA.

Similarly, the judge agreed that a ban on disclosing information about customers and vendors is too broad. This ban could be interpreted to prohibit employees from soliciting support from customers to improve working conditions or to prohibit employees from making complaints or statements to government agencies. A requirement that employees notify HR before participating in a government investigation is simply unlawful Employees cannot be directly or indirectly discouraged from filing an NLRB complaint or helping the NLRB investigate violations of federal labor law.

The judge agreed that Macy's could not issue a flat ban on unauthorized use of corporate logo, because employees have a federal right to use this information in union activities.

Macy's tried to salvage its rules by pointing to the Handbook introduction, which claims that the rules are not intended to prohibit the exercise of rights under federal labor law. The Judge found this disclaimer to be generic, in light of the very specific and detailed ways that the rules prohibit protected activity.

To remedy the violation of the NLRA, the judge ordered Macy's to revise the rules and notify all employees across the country that the unlawful rules have been rescinded and replaced with valid ones. Furthermore, the judge directed Macy's to post a notice in all of its stores that notifies employees of their rights under the NLRA, that Macy's violated these rights, and that Macy's will not violate these rights in the future.

Macy's has the right to appeal this decision to the full National Labor Relations Board.