Retailer that had non-union workers distribute anti-union fliers violated labor law

An employer that, during a union organizing campaign, requires its non-union workers to hand out fliers that reasonably could be perceived as part of an anti-union campaign may be found in violation of the National Labor Relations Act, the National Labor Relations Board has ruled. Tesco PLC d/b/a Fresh & Easy Neighborhood Market, Inc., 358 NLRB 65 (June 25, 2012).

The United Food and Commercial Workers International Union had conducted an organizing campaign at the employer’s Eagle Rock store in Los Angeles. The employer operates a chain of grocery stores. The Union presented the employer with a petition signed by a majority of employees, indicating their support for the Union and requesting the employer voluntarily recognize the Union as their collective-bargaining representative. The employer declined and stated it would not recognize the Union without an election.

Thereafter, in continuation of the organizing campaign, off-duty employees of the Eagle Rock store and union representatives distributed pro-union fliers in front of the store. Some customers were angry about the distribution and complained to store management. The employer began distributing its own flier, which included a $5 merchandise coupon, apologizing to customers “for any inconvenience union protesters may have caused.” The coupon flier also stated the following:

• The protesters are not our employees and have been hired by the United Food & Commercial Workers (UFCW) union.
• The UFCW wants fresh&easy [sic] to unionize.
• We’ve told the UFCW this is a decision only our employees can make. They have not made this choice.
• We take pride in being a great place to work.

Consistent with standard practice at the Eagle Rock store pertaining to coupons, the store manager instructed employees to personally hand the coupon flier to customers. Two employees complained to the manager. One refused to hand the flier to customers, telling the manager that the flier lied to customers and infringed on his right to support the Union. The other ultimately acquiesced in handing out the flier, but expressed displeasure because he supported the Union and was involved in the organizing campaign. Neither employee was disciplined. The Union filed an unfair labor practice (ULP) charge, alleging the employer had violated the NLRA by requiring employees to make an observable choice against the union organizing campaign.

The administrative law judge ruled there was no ULP because she found the flier did not “express a position on unionization.” The Union appealed.

The Board held there was a ULP and said the “key inquiry is whether employees would understand the material to be a component of the employer’s campaign.” It explained, “[L]iterature or other material need not contain an explicitly antiunion message in order to be part of an employer’s campaign or otherwise implicate the employee’s right to decide whether to express an opinion or remain silent.”

The Board found the employees in this case “reasonably would have perceived” the flier was a component of the employer’s anti-union campaign. “[J]ust as the Union’s distribution of handbills to customers was intended to promote community support for their organizing effort,” the Board found the employer’s flier “sought to generate community opposition to the organizing effort.”

Moreover, the Board found the flier made two misleading statement to put the Union in a “negative light.” In fact, contrary to the employer’s flier, employees voluntarily distributed the pro-union handbills along with paid representatives of the Union, and, again contrary to the flier, a majority of employees had signed the petition authorizing the Union to represent them. Thus, the Board called the employer’s statement in the flier “misleading, at best.”

Significantly, because at least two employees objected to distributing the flier, employees “reasonably would have perceived the coupon flyer as campaign material….” Therefore, the employer’s requirement that employees personally hand the flier to customers “coerced employees in their choice whether to ‘participate in the debate concerning representation,’” the Board said. This infringed the employee’s “right to choose, free from any employer coercion, the degree to which he or she will participate in the debate concerning representation.” The Board held the employer violated the NLRB by compelling the employees to participate publicly in making the employer’s statement criticizing the Union’s handbilling and organizing campaign.

Employers should consider carefully any response to pro-union activity during a union organizing campaign.  Jackson Lewis attorneys are available to answer questions about this NLRB decision or how to respond to union organizing activities.