Publications: Seventh Circuit Finds Unfair Labor Practices In Employer’s Anti-Union Statements

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The National Labor Relations Act (NLRA) prohibits any employer from interfering with, restraining or coercing employees in the exercise of their right to organize into a labor union. In Brandeis Machinery & Supply v. National Labor Relations Board, 412 F.3d 822 (7th Cir. 2005), the Seventh Circuit Court of Appeals, which covers Illinois, Indiana and Wisconsin, made it clear that both subtle and not-so-subtle anti-union actions and statements by an employer can constitute unfair labor practices in violation of the NLRA.

Brandeis Machinery & Supply sells and services heavy construction and mining equipment in Kentucky and Indiana. Brandeis maintained an employee handbook stating that it was “a nonunion organization. It always has been and it is certainly our desire that it will always be that way…” But in the spring of 2002 two Brandeis employees began an organizing campaign. In response, Brandeis officials adopted a rule prohibiting work-time union discussions. They commented on union buttons and hats the two employees wore, and shortened and staggered employee lunch breaks, while Brandeis’ president delivered a speech outlining the limits of the union’s right to solicit.

These and other events prompted unfair labor practice charges against Brandeis. Brandeis responded by arguing that its actions furthered the legitimate goals of maintaining productivity and discipline. The National Labor Relations Board (NLRB) disagreed, and the Seventh Circuit, on appeal, sustained the NLRB’s findings.

The Seventh Circuit undertook an intensely fact-based, contextual inquiry to find that Brandeis had violated the NLRA. The Court emphasized that proof of coercive intent or even coercive effect is not necessary to establish an employer’s unlawful interference with the right to organize. The proper test is “whether the employer engaged in conduct, which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.”

The Seventh Circuit considered the language and factual context of the anti-union provision of Brandeis’ employee handbook, which, in addition to expressing the company’s desire to remain nonunion, advised employees:

You have a right to join and belong to a union and you have an equal right NOT to join and belong to a union. If any other employee should interfere or try to coerce you into signing an authorization card, please report it to your Supervisor and we will see that the harassment is stopped immediately.

The Court noted that this provision was not part of a more general anti-harassment policy. It targeted only union activity. The Court also emphasized that the handbook provision failed to define “harassment,” allowing Brandeis employees to reasonably conclude that engaging in legally protected organizing activity arguably could be “harassment” in violation of company policy. For these reasons, the Court found that the handbook provision violated the NLRA.

The Seventh Circuit next considered Brandeis’ president’s speech, which included an admonition to employees that the union’s right to solicit members was limited. As with the handbook statement, the Court found that the speech gave inadequate guidance as to the meaning of “harassment.” The Court noted that “[e]mployees easily could have been left with the impression that protected activity such as persistent solicitations, offers of union literature or invitations to organizational/informational meetings could constitute harassment.” Because the test for a violation of the NLRA is whether an employer’s actions tended to interfere with employees’ rights, and not whether they actually interfered, the speech amounted to an unfair labor practice.

For the same reason, the Court found management’s comments regarding the wearing of union buttons and hats violated the NLRA, despite Brandeis’ argument that the comments did not dissuade the two employees wearing the union insignia and therefore did not constitute unfair labor practices. In rejecting this argument, the Court again noted that actual interference is not necessary to establish a violation, and while the comments may not have directly discouraged the wearing of union buttons and hats, they “may have had a chilling effect on employees who otherwise would have displayed their support for the Union in some manner.”

Finally, the Court held that Brandeis’ oral prohibition of union discussions during work-time and the shortening and staggering of employee lunch breaks violated the NLRA. Unlike rules prohibiting all non-work related speech during work-time, which the NLRB and Courts have upheld, the Brandeis rule was a response to its employees’ union activities and specifically targeted discussions regarding the union. Similarly, the Court found that the driving force for changes to the lunch policy was anti-union animus, not a desire to enhance customer service. The Court found that Brandeis would not have adopted the same changes absent union activity, noting:

Brandeis is free to adopt nondiscriminatory policies that forward its legitimate objectives of maintaining plant productivity and discipline. However, those policies may not target, either through design or enforcement, activity protected by the Act.

The Brandeis Machinery & Supply case demonstrates the NLRA’s sharp teeth and teaches that prudent employers must exercise caution when communicating with their workers about unions and union organization. Such caution is particularly important, though sometimes in short supply, in the heat of a union organizing campaign. Anti-union handbook statements and other management communications expressing anti-union sentiments can easily become unfair labor practices as can policy changes effecting employees’ ability to solicit, communicate, or assemble, when such changes focus on organization activities. When in doubt, employers should consult counsel about the strategic risks and benefits of communicating with their employees about unions and the actual substance of any statements they intend to make.