No-solicitation Policy, Employee Discharge and Statements about Potential Job Losses Violate NLRA: NLRB

Practical Law Legal Update 6-511-3348 (Approx. 6 pages)

No-solicitation Policy, Employee Discharge and Statements about Potential Job Losses Violate NLRA: NLRB

by PLC Labor & Employment

Key Litigated Issues

In UPS Supply Chain Solutions, Inc., the NLRB considered whether an employer violated the NLRA by:

Maintaining a no-solicitation rule that prohibited union solicitation in working areas during both working and non-working time.
Discharging an employee for his public outburst at a company meeting where the company had shown an anti-union video.
Informing employees that if the workforce became unionized the employer might lose contracts with clients thatrequired a non-union workforce, and in turn might need to eliminate jobs.

Background

In response to a union organizing campaign, the employer held employee meetings to campaign against the union. At one meeting, the employer's human resources supervisor showed employees a video to discourage interest in unions. After the video, the supervisor stated that, because some of the employer's contracts with clients required that it maintain a non-union workforce, the employer might need to eliminate jobs if employees unionized and there was a loss of business. The supervisor then asked if employees had any questions.

One employee, raised his hand and for several minutes made critical remarks about the employer and suggested that if employees supported a union, they did so because they were unhappy. Two weeks later, the employer discharged that employee for a history of insubordination including his conduct at the company meeting.

An NLRB administrative law judge (ALJ) dismissed the allegations concerning the solicitation policy and the supervisor's statement about job losses, but found that the discharge violated the NLRA. The employer and the NLRB's General Counsel each appealed the decision by filing exceptions and cross-exceptions to the five-member panel (Board) heading the NLRB's judicial functions.

Outcome

A three-member panel of the Board held that:

The employer's non-solicitation policy was unlawfully overbroad under Republic Aviation Corp. v. NLRB, because it barred solicitation in working areas during non-working time.
The employer unlawfully discharged the vocal employee for Section 7 activity.
The employer's statement about potential job loss was an unlawfu threat rather than a privileged prediction.

The Board ordered the employer to rescind its non-solicitation policy and either:

Republish its employee handbook without the unlawful policy.
Until handbooks were reprinted, supply employees with handbook inserts:
- stating that the policy was rescinded; or
- including a new, lawfully worded policy with adhesive backing to cover the existing policy.

The Board considered the following factors from Atlantic Steel when determining whether the employee's outburst was protected under the NLRA from discipline:

The place of the discussion.
The subject matter of the discussion.
The nature of the employee's outburst.
Whether the outburst was, in any way, provoked by an employer's unfair labor practice.

The Board held that the employee's outburst was lawful because it:

Occurred in a conference room where only a few other employees heard it.
Came in response to a query about how employees could desire union representation after seeing the anti-union video.
Was comprised of general complaints about management that were unprofessional but not outrageous.
Was provoked by the statement about job losses by the supervisor, which two of the three Board members found unlawful.

In addition, two of the deciding Board members held that the employer violated Section 8(a)(3) of the NLRA because the vocal employee supported the union, even though there was evidence that he only raised an extensive list of personal gripes and hypothesized that other employees might be interested in a union because they were unhappy.

The Board held that the supervisor's statement about potential job losses was unlawful under NLRB v. Gissel Packing Co., because it was not carefully phrased on the basis of objective fact to convey the employer's belief as to a demonstrably probable consequence beyond the employer's control. In particular, the Board found it relevant that:

The supervisor who made the statement:
- could not identify more than one contract with a customer that might have required a nonunion workforce;
- was unfamiliar with that contract's terms;
- was generally unfamiliar with the terms of all of the employer's contracts.
The employer did not introduce evidence of any contracts that imposed nonunion workforce requirements.

The Board found it irrelevant that the supervisor's statement about potential job losses was framed in terms of business necessity and did not imply that employees would be terminated for voting in favor of a union, because there was no objective evidence to support the employer's opinion or belief that job losses were probable if employees unionized.

For a model solicitation and distribution policy, see Standard Document, Solicitation and Distribution Policy.

For more information on organizing, elections and decertification, and the collective bargaining process under the NLRA, see Practice Note, Labor Law: Overview.

For more information on employee rights and prohibited unfair labor practices under the NLRA, see Practice Note, Employee Rights and Unfair Labor Practices Under the National Labor Relations Act.

Practical Implications

The Board's decision:

Confirms that employer non-solicitation policies must not preclude employee solicitation during non-working time
Sets out the Board's expectations for employers who are rescinding unlawful policies.
Suggests that employers be careful:
- not to ask employees why they might be interested in a union because the Board will likely insulate responding employees from discipline for otherwise disrespectful responses; and
- when considering disciplining a vocal employee, because the Board may view their comments to be protected union activity depending on the context of, and provocation for, the employee's outburst.
Instructs an employer to ensure that any predictions or opinions about the effects of unionization on the employer's business:
- are carefully worded to avoid suggesting that voting for a union guarantees negative consequences for employees;
- be based on demonstrable facts and sources; and
- delivered by supervisors or managers that are familiar with, and could credibly testify about, those facts and sources.
Warns employers that they should prepare to support campaign opinions with objective facts.

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