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Employer's Discriminatory and Overbroad Restrictions on Union Activity Violate NLRA, Court Rules

Showing deference to the National Labor Relations Board, the federal appeals court in Chicago has upheld the Board’s determination that a company violated the National Labor Relations Act by restricting union organizing activity at the workplace.  Loparex LLC v. NLRB, Nos. 09-2187, 09-2289 (7th Cir. Dec. 31, 2009).  The Court also agreed that the company’s shift leaders were not statutory supervisors under the NLRA.  Accordingly, the Court granted the Board’s order for the company to cease its unfair labor practices and to take affirmative steps to remedy its past violations.  The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.

The company owns and operates a manufacturing plant in Wisconsin with approximately 200 employees.  When a handful of them began to try to unionize the workforce, the company instituted a number of restrictions on activity in the workplace.  These included:

• requiring approval from the company before posting any material on company bulletin boards,
• telling union advocates they violated company policy in distributing pro-union flyers in the company parking lot, and
• telling union advocates that passing out Teamster union buttons in the plant and leaving buttons near a time clock violated company policy.

Additionally, the company discouraged employees from talking about the union during working hours, and told shift leaders they were supervisors under the NLRA, prohibited from participating in union activities.

The union filed unfair labor practice charges against the company in response to its policies and the Board found the company violated the NLRA by:

• promulgating its bulletin board policy because of anti-union animus,
• announcing unlawfully broad constraints on employee communications relating to unionization, and
• treating shift leaders as though they were supervisors under the Act. 

Bulletin Board Policy

On review, the Court first noted the NLRA offers employees broad protection from employers’ attempts to interfere with, restrain, or coerce employees in the exercise of their rights to organize.  This, however, “does not give employees an unfettered right to use a company’s bulletin boards to stir up interest in unionization.”  Therefore, “the critical question is whether the employer is discriminating against union messages, or if it has a neutral policy of permitting only certain kinds of postings (for example, those related directly to work rules).”  Even if a new policy is facially neutral and not applied discriminatorily, an employer may violate the NLRA if the policy is motivated by “its hostility toward pro-union activity” (i.e., anti-union animus).  Further, the Board is entitled to rely upon circumstantial evidence.

The Court determined that the Board had made a prima facie showing that anti-union animus was a substantial or motivating factor in the employer’s new requirement that anything posted on company bulletin boards be pre-approved.  As the company did not present any evidence to overcome this showing, the new bulletin board policy violated the NLRA.

Distribution of Union Flyers and Buttons

The Court said the NLRA recognizes that employees’ organizing activities may substantially interfere with employers’ property rights and interests in maintaining productivity and discipline.  While an employer is entitled to limit or ban union solicitation in the workplace during work time, it may not prohibit all solicitation in a company parking lot, the Court ruled.  Accordingly, the Court held the company engaged in an unfair labor practice in barring employees from placing union flyers under the windshield wipers of cars parked in the company parking lot.

Additionally, the Court held that the company’s policy against union buttons was overbroad under the NLRA. A company manager had warned employees, “I don’t want to catch you passing buttons out, Okay, I don’t want to see them laying around …. You can pass them out when you’re outside, on your own time, but when you’re here working, you, you, need to be working.”  The company sought to characterize the warning as “an anti-clutter order.”  The Court did not agree, finding this overbroad and operates in a way that discriminates against union organizers — employees could have believed they were barred from soliciting near the time clock, a non-work area, during non-working hours.

Shift Leaders as Supervisors

Finally, the Court determined that the company engaged in an unfair labor practice by telling shift leaders that they were NLRA statutory supervisors and were forbidden to engage in pro-union activity.  Shift leaders did not have the authority to transfer, assign, responsibly direct, or to effectively recommend rewards for workers, as required under the Act, the Court found. They worked under a team manager and would receive a priority sheet at the beginning of each shift that listed the jobs for each machine in order of importance and when those jobs are due. Based on the priority sheet, shift leaders directed crew members which machine to operate during the shift.  Machine assignments were random or based on the need to finish a job.  Shift leaders did not take into account the relative skills of their crew members.  They also operated machinery.  Therefore, the Court determined shift leaders were not NLRA supervisors and cannot be prohibited from engaging in pro-union activity.

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Employers faced with a union organizing campaign must act in accordance with the NLRA, which provides employees broad protection from employers’ attempts to interfere with, restrain, or coerce employees in the exercise of their rights to organize.  Employers should consult with labor counsel before implementing any policies that may be seen as interfering with organizing rights.