The Court of Appeals for the Seventh Circuit recently upheld a National Labor Relations Board ("Board") decision that Loparex LLC violated the National Labor Relations Act ("NLRA") by imposing overly broad restrictions during a union organizing campaign. Loparex implemented a new policy that required employees to secure company approval before posting any material on company bulletin boards, it prohibited union supporters from distributing pro-union flyers in the company parking lot and union buttons near the time clock in the plant, and it advised shift leaders that they were supervisors and, as such, could not participate in union activities. The court ruled that each of these acts violated the NLRA. Loparex LLC v. NLRB, Nos. 09-2187, 09-2289 (7th Cir. Dec. 31, 2009).

Bulletin Board Policy Change was Motivated by Anti-Union Animus

The NLRA "does not give employees the unfettered right to use a company's bulletin boards to stir up interest in unionization." At the same time, however, employers cannot discriminate against union messages on bulletin boards. Moreover, even if a bulletin board policy is neutral, an employer may violate the NLRA if its motivation for implementing a new policy is its hostility towards pro-union activity.   

Loparex argued that it did not violate the NLRA because its new policy was facially neutral and did not discriminate against the union; however, because Loparex could not identify a legitimate business justification for adopting the new policy when it did — after the organizing campaign had begun — the Court inferred that Loparex implemented the new policy because of its anti-union animus.

Employers should carefully review their current bulletin board policies. A neutral bulletin board policy that allows only work-related messages will always pass muster under Board law. If, however, the employer allows employees to post non-work related messages and a union campaign begins, Loparex teaches that the employer may not be able to change the policy so as to prevent the employees from posting pro-union literature. 

Distributing Union Flyers and Buttons

An employer has the right to limit or ban union solicitation in the work place during working time; however, an employer generally cannot ban solicitation in non-work areas. Loparex barred employees from placing union flyers on cars in the company parking lot and warned employees against passing out union buttons or leaving them around the time clock. The Court held that Loparex's rules were overbroad and discriminated against union organizers. The Court reasoned that Loparex failed to offer a legitimate business justification for the parking lot restriction, and that employees could reasonably believe that they were barred from soliciting near the time clock, a non-work area.

Again, employers should review their policies and practices regarding solicitation well in advance of any organizing activity. A policy and practice of prohibiting solicitation of any kind in work areas during work time is generally lawful; however, broader limitations, or an inconsistent practice, will lead to problems, especially during a union organizing campaign.

Shift Leaders Were Not Supervisors

Finally, the court held that the shift leaders were not statutory supervisors within the meaning of the NLRA and, therefore, forbidding them to engage in pro-union activity was an unfair labor practice. To be considered a statutory supervisor under the NLRA, an employee must use independent judgment in carrying out one of 12 supervisory functions. It is important that the exercise of such authority is not merely routine, but involves the use of independent judgment.

The shift leaders did not possess the authority to transfer, assign, direct or effectively recommend rewards for employees, as required under the NLRA. The work assignments that they issued were routine and based upon a priority sheet that they received from a team manager. The other assignments that the shift leaders gave did not take into account the relative skills of their crew members and were more routine in nature. On these facts, the court held that the shift leaders were not supervisors and, therefore, Loparex could not prohibit them from engaging in pro-union activity.

In sum, policies that are not carefully drawn to comply with the law, and practices that deviate from a lawful policy, frequently lead to significant problems during a union organizing campaign. Therefore, it is essential that employers carefully review policies dealing with bulletin boards, solicitation, and distribution before an organizing campaign begins. Equally important, employers should decide whether they want team leaders to be supervisors, and if so, ensure that they possess the discretion and other qualities needed to hold that status.