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A Reminder About Union Organizing Activity

Published by on February 1, 2010

In Loparex v. NLRB,, the U.S. Court of Appeals for the Seventh Circuit upheld the NLRB’s decision that Loperex had engaged in unfair labor practices in violation of the NLRA.  The decision is a reminder that Section 8(a)(1) offers employees broad protection from employers’ attempts “to interfere with, restrain, or coerce employees in the exercise” […]

In Loparex v. NLRB,, the U.S. Court of Appeals for the Seventh Circuit upheld the NLRB’s decision that Loperex had engaged in unfair labor practices in violation of the NLRA.  The decision is a reminder that Section 8(a)(1) offers employees broad protection from employers’ attempts “to interfere with, restrain, or coerce employees in the exercise” of their statutory rights to organize.  29 U.S.C. § 158(a)(1); 29 U.S.C. § 157.  More after the break.

Loparex LLC owns multiple production facilities scattered across the country where it manufactures polycoated and silicone-coated papers and films.  Among its locations, Loparex owns and operates a small manufacturing plant in Hammond, Wisconsin.  When a handful of the 200 employees working at the plant began to drum up interest in unionizing the workforce, Loparex pushed back by placing a number of restrictions on organizing activity at the workplace.  Then, when the company announced several controversial employment policies a small group of employees renewed their efforts to unionize the plant..

Loparex imposed several limitations on union organizing at work. After union supporters posted material on company bulletin boards in March 2007, Loparex issued a policy statement that required employees to obtain approval before placing any material on the boards. A few months later, several employees attempted to distribute prounion flyers in Loparex’s parking lot, but they were stopped by company officials.  Around the same time, employees passed out union buttons in the plant and left some of them near a time clock for other employees to pick up.  When company officials learned of this activity, they quickly called a meeting and told the union advocates that they had violated company policy.  Management also discouraged employees from talking about the union during working hours.  Then, in June or July 2007, Loparex informed all of the shift leaders working at the Hammond plant that they qualified as supervisors under the NLRA and were thus prohibited from participating in union activities.  Following these events, Teamsters Local 662 filed three separate unfair labor practice charges. 

Loparex’s actions were brought to the attention of the NLRB, which concluded that Loparex had engaged in a number of unfair labor practices in violation of the National Labor Relations Act,§ 8(a)(1), 29 U.S.C. § 158(a)(1). The Board ordered Loparex to cease and desist and to take several affirmative steps to remedy its past violations. The ALJ, in November 2008 found that Loparex had violated the Act in several ways:  (1) by promulgating its bulletin board policy because of antiunion animus; (2) by announcing unlawfully broad constraints on employee communications relating to unionization; and (3) by treating shift leaders as though they were supervisors under the Act.  Loparex eventually petitioned the court to set aside the Board’s decision. 

Discriminatory interference with union organizers’ access to bulletin boards is forbidden.  Loparex generally permitted employees to use bulletin boards for a variety of non-work purposes but shut off access in response to union organizing activity.  Accorining to the Court, the critical question was whether the employer is discriminating against union messages, or if it has a neutral policy of permitting only certain kinds of postings (for example, those related directly to work rules). Discriminatory interference with union organizers’ access to bulletin boards is forbidden.  Here the ALJ and Court of Appeals found that while the policy itself was facially neutral, Loperex failed to provide evidence that it was not implemented in response to the organizing efforts.  The same thinking led the Court to find that the constraints on employee communications were unlawful.  By purporting to restrict distribution in non-work areas, during break times, Loparex stepped over the line.  “[A] rule is presumptively invalid if it prohibits distribution on the employees’ own time.”

Finally, Loparex, in the midst of the union organizing activities, decided to re-classify its shift leaders as “supervisors” within the meaning of the Act and thus prohibited from engaging in union activities.  To prove that employees qualify as statutory supervisors, an employer has the burden to prove: “(1) [the employees] hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their ‘exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,’ and (3) their authority is held ‘in the interest of the employer.”  Loparex argued that shift leaders qualified as supervisors because they had the authority to responsibly direct employees and assign them work.  The Court did not agree.  The shift leaders’ method of assignment was routine and clerical in nature; therefore, the Board acted within its authority when it concluded that Loparex’s shift leaders did not exercise the requisite independent judgment to qualify as supervisors under the Act.

Loparex v. NLRB, Case Nos. 09-2187, 09-2289, U.S. Court of Appeals for the Seventh Circuit, December 31, 2009.

Contributed by Michael Wilson Stoker

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