4th Circuit Grants Enforcement To NLRB In Connection With Union Election
Published by Eric A. Welter on December 7, 2007
The U.S. Court of Appeals for the Fourth Circuit issued an unpublished decision today granting enforcement to the NLRB of its decision that an employer committed four unfair labor practices in connection with a union organizing campaign. The case is SNE v. NLRB, No. 06-1881 (4th Cir. 12/7/2007). The case is a brief tutorial on […]
The U.S. Court of Appeals for the Fourth Circuit issued an unpublished decision today granting enforcement to the NLRB of its decision that an employer committed four unfair labor practices in connection with a union organizing campaign. The case is SNE v. NLRB, No. 06-1881 (4th Cir. 12/7/2007). The case is a brief tutorial on several things that an employer should not do during a union organizing campaign, including deciding to withdraw a decision to increase wages because of the union campaign, selective enforcement of a no-solicitation rule, unreasonably restricting an employee from discussing the terms and conditions of their employment, and discharging an employee for testifying in a Board proceeding.
The Court first found that SNE had violated the National Labor Relations Act (“the Act”) by withholding a planned wage increase during a union campaign without a legitimate business reason. SNE had scheduled a wage increase in March 2004, around the same time the union began its organizing campaign. When SNE learned of the Union campaign, it posted two notices stating that if the union was rejected, the wage increase would be granted. The Court upheld the Board’s finding of an unfair labor practice because the employer had planned on a wage increase but decided against it because of the union.
Second, the Court found that SNE had violated the Act by selectively enforcing its no-solicitation policy by terminating employee Benny Moore, who was a member of the organizing committee. Moore asked an employee to sign a union card during work time. Testimony showed that employees sold various items such as candles, Girl Scout cookies, and tickets during work time, sometimes in the presence of supervisors. “[A]n employer may not enforce an otherwise valid no-solicitation rule against union solicitation, while permitting non-union solicitation.”
Third, the Court found that SNE violated the Act by prohibiting employee Dana Adkins from speaking with co-workers about a disciplinary incident and by discharging him for violating that prohibition. Adkins broke the computer screen of a piece of machinery that he was operating. Adkins was told not to speak with anyone about his discipline while SNE’s investigation was pending. The next month, after SNE’s investigation was completed, Adkins attempted to apply for another position but was told he could not apply because he had been placed on final warning status. Adkins stated that he never received the warning, so SNE presented it to him the next day. Adkins disagreed with a statement in the written warning, and he spoke with the maintenance worker who wrote the statement in question about the incident — for which he was discharged.
The Court reiterated that an employer cannot prohibit an employee from discussing the terms and conditions of his employment unless substantial business justifications outweigh the protected rights involved. Here, SNE argued that it prohibited Adkins from talking to protect the integrity of its investigation — but its investigation of the broken screen was already complete when it terminated Adkins. The Board also concluded that SNE’s desire to prevent conflict did not outweight Adkin’s right to discuss his discipline.
Finally, SNE violated the Act by discharging an employee for testifying against SNE’s interests. Ruth Adkins (unrelated to the above Adkins) was called to testify in another NLRB proceeding on SNE’s challenges to the union election. At the hearing, she testified that she had not advocated for the union after she was determined to be a supervisor by the Board. When she returned to work following the hearing, SNE terminated her, claiming that her testimony in the hearing conflicted with what she had previously told management and attorneys. Because SNE could not prove the testimony to be false, or an intent to deceive on Adkins’ part, the Court concluded that SNE had violated the Act. Judge Niemeyer dissented from this portion of the decision.Topics: NLRB