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Sep 07, 2018

Employee Surveillance & Union Formation

By: Allison Mann

In North Dakota, union membership is currently on the decline; but some heads of unions expect the situation to turn around soon. North Dakota has a lower concentration of union workers than the rest of the country, at about 5.5 percent, or roughly, 20,000 workers. Often the decision to form a union can be a hotly contested issue, which can lead to friction between labor and management. It also raises questions like: what surveillance actions are permitted to employers when employees seek to form a union; and what potential violations can these create? This article seeks to answer those questions.

In a Fourth Circuit Court of Appeals decision, an employer sought appeal from a National Labor Relations Board (“NLRB”) decision. This decision concluded that the employer violated the National Labor Relations Act (“NLRA”) by unlawfully interrogating an employee about his union sentiments, confiscating union flyers from the break room, and engaging in unlawful surveillance of employees during leafletting.

With respect to the surveillance violation, the employer decided to leaflet its employees two days before the union election. Supervisors stood at the gate as employees entered for the morning shift. At the time, no union supporters were present. Later that evening, the employer again leafletted its employees, but this time union supporters positioned themselves at a distance of five feet on either side of the supervisors. The next day, the employer continued its early morning leafletting, this time the union supporters did not accompany them. Later that evening, the supervisors returned to leaflet and found the union supporters already leafletting. The two groups continued to leaflet on opposite sides of the gate. The court reasoned that the supervisors did not engage in threatening or intimidating behavior towards the union supporters, or the arriving employees. The court further reasoned that there was no evidence to suggest that the supervisors knew that union supporters intended to hand out leaflets at the gate. The court held that the general rule of employer surveillance of union activity is that an employer’s act of observing employees on company property, is not a per se violation of the act. However, an “exception to this general rule arises when the employer’s observation of union activities can be reasonably construed as excessive or coercive surveillance, such that it ‘unreasonably chill[s] the exercises of the employee’s section 7 rights.’”

In this case, the employer’s surveillance actions were not found to be coercive or excessive. On appeal, the court reversed the surveillance violations, finding that by leafletting, the employer was exercising its First Amendment and NLRA right to leaflet its employees. It also found that there was no evidence that the employer’s supervisors engaged in “excessive surveillance” of the union supporters.

The NRLA, 29 U.S.C. § 157, governs the employee’s right of self-organization to form, join, assist labor organization, and bargain collectively through a representative of their choosing. Section 158(a)(1), Unfair Labor Practices, states that it is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their § 157 rights. Section 158(a)(3) of the NLRA also makes it an unfair labor practice for an employer to discipline an employee to discourage him or her from engaging in union activities. To support a determination that such a violation has occurred, the NLRB must find that:

    (1) The employee was engaged in protected activity;

    (2) The employer knew of the employee’s protected activity; and

    (3) The employer acted as it did because of anti-union animus.
In determining whether an employer was motivated by anti-union animus when suspending or terminating an employee, federal courts have considered such factors as an employer admitting to recent discriminatory conduct, disparate treatment of union and anti-union employees, and an employer changing the justifications for its disciplinary actions.

An Eighth Circuit Court of Appeals case found a violation of 29 U.S.C. § 158(a)(3) when an employer suspended and later terminated an employee for distributing union literature, a protected activity under § 8(a)(3) of the NLRA. In June of 2002, an employee became a member of the union organizing committee at his workplace. Later that month, he engaged in a 10-minute conversation with a co-worker regarding union-related activities during work time. Pursuant to company policy, he received a written warning for this. One month later, on his day off, the employee came in to distribute union literature. He was then suspended for three days and given an “Employee Warning Record,” detailing his actions in distributing the “papers.” This warning did not mention that the papers were pro-union literature. The warning also stated he could not come into work on his off days, unless he obtained a visitor’s pass and permission to enter areas of the plant other than the human resources office. Lastly, the warning stated that the employee “will be terminated if [he] violates this direction.” In reviewing the NLRB’s findings, the court determined that the employee was not given an opportunity to respond to the allegations before his suspension; that the employer did not investigate the alleged activity; and the fact that the employee was given his written warning for distributing papers, on the same day that he was suspended, pointed to sufficient evidence to support that the employer violated § 8(a)(3) of the NLRA when it suspended the employee. The court upheld the NRLB’s finding of a violation.

The Takeaway:
To avoid potential violations of excessive surveillance and interference with union organization, some helpful points can be gleaned from these cases:

    (1) Employers can exercise their first amendment rights through leafletting of employees, if this does not constitute “excessive surveillance”;

    (2) Employers can avoid “excessive surveillance” by refraining from threatening or intimidating behavior; and

    (3) Employers should also be careful to avoid disciplining employees for protected activity, with respect to union activity.
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Reprinted with permission from an article submitted for publication in the September, 2018 Southwest Area Human Resource Association newsletter.
April Baumgarten, Union Membership Stabilizing in North Dakota, Minnesota, (September 4, 2017) (last visited August 31, 2018).