Ninth Circuit Issues Ruling on Union Surveillance
Posted by Nancy G. Berner
The Ninth Circuit Court of Appeals recently issued a ruling denying a union’s claim that a company engaged in unlawful surveillance when HR personnel interrupted two meetings between union organizers and individual employees. Local Joint Executive Board of Las Vegas v. NLRB (9th Cir. 05-75515 01/28/08).
The underlying facts were not at issue. Unions implemented an open campaign to organize and unionize culinary workers at a Las Vegas hotel. On two separate occasions, a human resource manager observed and then interrupted conversations in the employee dining room between organizers and workers to present the hotel’s point of view. In particular, the manager stated that workers should be aware that signing a union card obligated the worker to pay monthly dues, and that the workers should make sure they had all the facts before signing the card.
The National Labor Relations Act holds that management observations of protected labor organizing activity may be illegal if it the observations are unduly intrusive and management acts in a manner that is “coercive.” Here, the NLRB refined, and the Ninth Circuit upheld, a three-factor test of when management’s observation of union activity becomes coercive. The NLRB’s indicia of coercive activity include: a) the duration of the observation; b) the distance between management and employees during the observation and c) whether the employer engaged in coercive behavior during the observation.
Applying the factors, the Ninth Circuit rejected the union argument that by interrupting protected union activity, even to make legitimate statements, makes an otherwise lawful observation unlawful. The Court noted that a brief, spontaneous interruption, unaccompanied by any coercive statements or actions, was not sufficient to create in illegal interruption. Please contact us directly to discuss any questions you may have relating to this matter.