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No-match letter no-discussion rule was unfair labor practice
January 12, 2009 by Ross Runkel at LawMemo
Today's NLRB Law Memo reports on an interesting crossover between no-match letters and employer no-discussion rules.
The federal government issues a "no-match letter" when an employee's name does not match up with the reported social security number. It's an attempt to prevent illegal workers from faking social security numbers, and to prevent employers from employing illegals.
When the folks at Ashley Furniture got a no-match letter, they told their employees that they were required to resolve the discrepancy with the Social Security Administration, and instructed them not to discuss their no-match letters with anyone. They also told an employee not to discuss with anyone that he had received a disciplinary warning and that his "green card" had expired.
The problem with that, of course is that ordinarily employees have a statutory right to discuss workplace issues with fellow-employees. Section 7 of the National Labor Relations Act.
So one of the employees filed an unfair labor practice charge with the NLRB, and the NLRB found that the disciplinary warning, green card issue, and no-match letters constituted Section 7 "workplace matters" which employees were free to discuss among themselves or with outsiders, and that the employer could not lawfully prohibit such discussions absent a legitimate and substantial business justification.
The employer asserted several confidentiality concerns as justification for its "no-discussion" requirement.
The NLRB found that the employer's defense failed because none of its confidentiality concerns outweighed the employees' Section 7 right to discuss the workplace matters at issue. Accordingly, the NLRB found that the employer's no-discussion requirement violated Section 8(a)(1) of the Act.
The case: Ashley Furniture Industries, Inc., 353 NLRB No.71 (12/31/2008).
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