Publications: Surprise! Labor board blasts the employer - again

Displaying once more their servitude to Big Labor, the National Labor Relations Board's (NLRB) Obama-appointed members slam another employer, a grocer who was just trying to make things right with its customers.
Fresh & Easy Neighborhood Market runs a chain of groceries in California. During 2009, its Eagle Rock store in Los Angeles became the target of a union- organizing drive by the United Food and
Commercial Workers Union (UFCW).
In March 2010, the union requested that Fresh & Easy voluntarily recognize it as the collective bargaining agent for the Eagle Rock employees. The union presented the store with a petition purportedly signed by a majority of the store's employees. Fresh & Easy refused the union's request and stated that it would recognize the union only if NLRB certified it following a secret ballot election among the Eagle Rock employees.
Secret ballot elections allow the employees to vote in private and anonymously and ensures that their choice, unlike with a petition or authorization card check, is not coerced by union agents.
The UFCW thereafter ramped up the pressure. During late 2010, paid union mercenaries, aided by some off-duty Eagle Rock employees, distributed pro-union fliers in front of the Eagle Rock store. Some customers became angry about the pro-union fliers and complained to management.
Fresh & Easy responded to the customer complaints in a fairly rational way. It enlisted the Eagle Rock employees to distribute the company's own flier to customers, which included a $5 merchandise coupon on the back. The Fresh & Easy fliers apologized to the customers "for any inconvenience union protesters may have caused" and read as follows:

• The protesters are notour 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 offer good pay as well as comprehensive, affordable benefits to all our employees.
• We take pride in being a great place to work.

The Fresh & Easy fliers said nothing negative about the UFCW or even indicated expressly management's feelings about the union organizing drive. The company's decision to have store employees distribute the fliers was consistent with its past and standard practice regarding the distribution of coupons.
Two pro-union employees objected to having to distribute the Fresh & Easy fliers.
The company shrugged off their complaints. The pro-union employees were not disciplined in any way.
The UFCW nevertheless filed with the board unfair labor practice charges against Fresh & Easy, claiming, inter alia,that Fresh & Easy had coerced employees to distribute "anti-union fliers" to the customers.
Following an evidentiary hearing, a NLRB administrative law judge ruled that Fresh & Easy had not broken the law. According to the administrative law judge, while employers are prohibited from forcing employees to make an "observable choice" to oppose or support a labor organization, the fliers distributed here could not reasonably be viewed as an "anti-union communication" or a "component of the company's campaign against union representation."
Two of the board's members reversed this finding. Tesco PLC d/b/a Fresh & Easy Neighborhood Inc. 358 NLRB No. 65, June 25, 2012. They claimed that the legal test was whether the employees "would understand the material to be a component of the employer's campaign." In other words, the board majority completely deferred to the pro-union employees' subjective point of view regarding the company's fliers. Once it did that, the case's result, guilty as charged, was pre-ordained.
The board majority also announced that, in its view, the Fresh & Easy fliers were distributed to generate community opposition to the UFCW's organizing effort.
Of course, none of the hearing evidence supported this conclusion and the evidence that was adduced at the hearing indicates that the employer was attempting to assuage a customer base that was offended by the UFCW's flyers and tactics.
The board majority also scolded Fresh & Easy for claiming in the fliers that the employees had not chosen to unionize when a majority had signed a pro-union petition. This without acknowledging the inherent unreliability of union petitions as indicators of employee preference.
One board member dissented, finding the Fresh & Easy flier to be "neutral." He further indicated that management's requirement that the employees distribute the flier would not enable the company "to assess an employee's sympathies."
As we are about three years into an NLRB overtly hostile to employers, this decision should come as no surprise.
Employers faced with the unpleasantness of defending their actions before a pro-union board now really have but one viable option — build the record, appeal and hope that the appellate court judges who hear board appeals apply fairness and some common sense.

Reprinted with permission from the Chicago Daily Law Bulletin.