On November 3, 2014, Honorable Susan K. Cook of the Superior Court of the State of Washington in and for the County of Skagit entered an order granting Plaintiff Familias Unidas Por La Justicia’s (“Familias”) Motion for a Preliminary Injunction against Sakuma Bros. Farms & Market (“Sakuma”). The Court found that portions of Sakuma’s Employee Handbook and Employee Housing Agreement interfered with its seasonal employees’ right to self-organize and engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

This order is an interesting read for companies involved in workplace class action litigation, especially employers who utilize seasonal workers, as it discusses what policies may run afoul to the National Labor Relations Act (NLRA) or similar state statutes.

Background

Familias Unidas Por La Justicia is a community organization that was formed in 2013 to improve the working conditions of farm workers at Sakuma, a berry farm located in Washington State.   Sakuma hires seasonal workers for harvest, providing workers temporary housing at its labor camps located on its property.

In 2013, members of the Familias engaged in organizing activity at Sakuma’s labor camps. In response, Sakuma hired security guards to survey the workers. The security guards conducted surveillance of the Familias’ members and even followed them and their supporters on public roads.

Sakuma also modified its 2014 Employee Handbook to prohibit: (1) solicitation by employees of other employees for any purpose, (2) solicitation by non-employees of employees, and (3) the distribution of literature in non-work areas of the property, including parking areas, rest and break areas and company-provided housing. Additionally Sakuma’s Employee Handbook prohibited access to these areas by all non-employees, except with company authorization.

Additionally, Sakuma modified its 2014 Employee Housing Agreement to prohibit visitors of employees or occupants from going inside an employee’s housing unit. Instead, employees could only meet with visitors at the Sakuma visitor center between the hours of 9:00 a.m. and 9:00 p.m.  The security guards were able to survey the meetings at the visitor center.

Familias subsequently filed suit against Sakuma. On October 25, 2013, the Court found that Sakuma had interfered with Familias’ members’ rights under the Little Norris LaGuardia Act (“LNLA”) by hiring the security guards to conduct surveillance on the workers’ housing. Then in June 2014, the Court again ruled for Familias, finding that Sakuma had interfered with rights under the LNLA and retaliated against Familias’ members for exercising their rights under LNLA by denying members housing at Sakuma’s labor camps, and classifying members as ineligible for work because of their organizing activity.

In October 2014, Familias sought a preliminary injunction against Sakuma. Familias sought an order requiring Sakuma to remove its policies that: (1) prohibit visitors from going in workers’ housing units;  (2) prohibit the distribution of materials in non-work locations; and (3) prohibit workers from engaging in any other act that would interfere with the their right to self-organize or engage in concerned activities.   The Court granted the preliminary injunction.

The Court’s Decision

The Court first analyzed the LNLA.  The LNLA, like the NLRA, provides that workers “shall be free from interference, restraint, or coercion of employers . . . in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protections.”   The Court noted that time outside working hours, whether before or after work, or during breaks is an employee’s time to use as he or she pleases.  Thus, an employer cannot promulgate and enforce a rule prohibiting union solicitation by an employee outside working hours, although such activity occurs on company property.

The Court held that workers also have a right to be free from surveillance that restrains and/or deters protected activity. Thus, Sakuma’s use of guards at the labor camps was illegal as it restricted workers’ ability to meet together and engage in organizing activities.

The Court also found that Sakuma changed its Employee Handbook and Employee Housing Agreement to retaliate against Familias’ members because of their protected concerted activity. The Court noted that Familias’ members have a right to be free from retaliation due to their LNLA-protected activity, a right to invite visitors into their housing units, and right to engage in protected concerted activity.

The Court then ordered that: (1) Sakuma remove the prohibitions on solicitation and distribution of literature in non-work areas and on non-work time from its employee handbook; and (2) remove the provision from its handbook that requires all guest visits to take place in the visitor center and prohibits visitors in the housing units. The Court held, however, that Sakuma may keep records of who enters the labor camps, may inquire as to the general purpose of the visit, may exclude individuals who previously committed crimes on the property, and may establish reasonable curfews for visitors. The Court made clear, however, Sakuma may not ask who the visitor is visiting.

Implications for Employers

The Court’s ruling is a good read for any employer faced with union activity on their property or involved in a class action where union issues are lurking. It is a reminder that employers must be careful when regulating certain employee activity, as it may be seen as restricting or prohibiting employees’ rights to organize or engage in concerted activity.