Steven Swirsky Quoted in “Kroger Unlawfully Restricted Union Access to Company Car Park, NLRB Judge Finds”

Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the International Employment Lawyer, in “Kroger Unlawfully Restricted Union Access to Company Car Park, NLRB Judge Finds,” by Josh Stephens. (Read the full version – subscription required.)

National Labor Relations Board (NLRB) judge has ruled that a US supermarket chain violated federal labour laws by prohibiting staff from using a company car park to solicit union support outside work hours. …

Epstein Becker Green’s Steven Swirsky says: “Cases like these are intensely fact driven when they are litigated. The [Administrative Law Judge] will look at not only the policy itself, but whether the employer is consistent in its application, and the reasons that the policy is needed for operating and security reasons.

“Often, policies that are lawful on their face are found to have been applied in an inconsistent manner, such as allowing access for some purposes but not for others, and beyond the scope of the employer’s legitimate interest in maintaining and enforcing the policy.”

Swirsky warns that employers should always know when to enforce and apply such policies, not just when organising is underway.

“A policy that would otherwise be found lawful, will likely be found not to be, if it is introduced in response to actual or threatened organising activity. Similarly, if a policy is on the books, but is not enforced or applied until there is union activity, the enforcement and application of the policy can be found to be an unfair labour practice, even though the policy is facially lawful.”

When facing a union campaign, Swirsky says positive employee relations and effective communication can help navigate difficulty.

“Many employers will seek to ask employees why they are considering union representation when they learn that there is a campaign underway. That can be found by the NLRB to be an unlawful solicitation of grievances and an unlawful interrogation of the employees, even if the employer’s reason for asking is to better understand what employees’ concerns may be,” he says.

“On the other hand, if an employer regularly conducts townhalls, and other meetings with employees to get feedback, the same conduct can be lawful, even when the employer is aware of organising activity. These analyses are all extremely fact driven.”