Court rules NLRB properly attributed pre-election threats to employer, requiring election rerun; prohibiting union use of bulletin board not unlawful
Fleming Companies, Inc. v. NLRB (7th Cir. 11/18/03) deals with several recurring unfair labor practice issues.
First, the court affirmed the Board’s holding that the employer committed an unfair labor practice “by threatening employees that it would impose more stringent working conditions and would start enforcing company rules because of union organizing activity.”
The company rules, restricting early clocking-in and excessive breaks, were reasonable and had been in effect prior to the organizing drive. But they had apparently had not been strictly enforced, and the timing and context of the threats to strictly enforce them supported the Board’s conclusion of unlawful coercion.
One more reason to follow this maxim: don’t establish policies and then fail to enforce them consistently (you never know when you might really want to enforce them and find it problematic because of prior laxity).
Second, the court rejected the employer’s argument that the person who threatened the stricter enforcement was not functioning as its agent at the time. The applicable law is that “[t]o hold an employer liable, the individual who made the statement must act as an agent of the employer.”
The court found such agency based on the doctrine of “apparent authority”: “An agent has apparent authority when an employer takes steps that would reasonably lead third persons to believe that the designated employee was authorized to take certain actions on behalf of the employer.”
Substantial evidence supported the Board’s finding of apparent authority because the person in question had been described to the employees as a “supervisor” and a “Team Leader,” the employees testified they “reported to” him and took orders from him, he directed other employees’ work, investigated employee conduct, and gave written reports of disciplinary incidents to higher management. Furthermore, the Board found the conversation in question was done “at the direction of higher management.”
It’s extremely tough to disavow conduct of anyone cloaked with supervisory authority. Such people must be made highly aware that anything they do or say can be used against the company.
Third, the court upheld the NLRB’s finding of an unfair labor practice based on evidence that at a mandatory meeting the day before the election the president of the division warned a group of about 100 employees that if they voted for the union, the company would be financially damaged and the warehouse might close down.
The court simply cited the rule that: “A threat of plant closure is a per se violation.” The court didn’t dwell on the difference between the two witnesses as to whether the speech said the facility “would” close or “could” close if the union won.
This is an example of deference by the courts to NLRB credibility findings, which makes it tough to reverse NLRB decisions. The Administrative Law Judge credited the testimony of two employees (out of the 100 present) over the denials of the division president, as to what was said in the speech.
Finally, the court reversed the NLRB’s conclusion that the employer unlawfully removed union flyers from the bulletin board in the break room.
The employer argued it had a valid, pre-existing policy prohibiting unapproved bulletin board postings. Indeed, the employee handbook had a rule restricting the bulletin boards to company use and prohibiting employees from posting personal announcements. However, contrary to this policy, the employer permitted employees to post personal items such as notices of weddings or births. Unlike the NLRB, the court held this discrepancy did not preclude enforcement of the rule in the context of union postings.
The applicable principle is that “[a]n employer has the right to restrict access to its bulletin boards, [but] cannot discriminate against a union’s posted material by disparately applying its posting policy to hinder the union’s efforts.”
There was no such discrimination, according to the court, because the employer consistently barred all “notice[s] expressing ideas and designed to induce action by employees as a group, such as an investment club, travel club, sports club, religious club, political club, or any similar club or committee.”
The NLRB had reached a contrary conclusion applying NLRB precedent; the 7th Cir. reversed, applying its own precedent.
Unfortunately, it is not unusual to find discrepancies between NLRB decisions and court decisions. While one might assume federal court decisions take precedence, the NLRB often will continue to apply its rulings except in the circuit(s) that issued the contrary decision(s). Here, I would pay more attention to the contrary NLRB decision and would research other cases before applying this decision — elsewhere than the 7th Cir.
