Employer Response to Leaflet Distribution Violates NLRA

In a continuing trend of anti-employer decisions, the NLRB recently ruled in a 2-1 decision that a grocery store violated the NLRA when it required its employees to distribute flyers with an apology and a $5 store coupon to customers who were upset about a union who was distributing leaflets near the store’s entrance.  The union leaflet stated that the supermarket refused to recognize the union despite the fact its employees wanted the union to be recognized.

This case began when the United Food and Commercial Workers Union (UFCW), after 5-6 months of an organizing campaign, presented the employer with a petition allegedly signed by a majority of employees stating the employees wanted the Union to be recognized.  The employer declined to voluntarily recognize the Union.

Instead of filing a petition with the NLRB for an election, about 8 months later the Union distributed leaflets in front of the store.  The Union used off duty employees and paid Union representatives to distribute the flyers.  Some customers were angry about the distribution and complained to store management.  In response the store had its employees distribute a flyer with a $5 merchandise coupon on the back apologizing to customers for any inconvenience the Union protesters may have caused.  The coupon flyer contained the following bullet points:

• The protesters are not our employees and have been hired by the UFCW.
• The UFCW wants [the store] 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.

Consistent with store practice concerning coupons employees were instructed to hand the flyers directly to customers instead of placing them in the customer’s bag or leaving a stack for customers to help themselves.  At least two employees complained to the store about having to hand out the flyers.

The administrative law judge (ALJ) dismissed the allegation noting that while the law is clear employers cannot force an employee to make an observable choice to support or oppose a union, she held the flyer did not contain an anti-union communication and was not part of the company’s campaign against unionization.  Two Board members disagreed and reversed the ALJ.  The majority held that “literature or other material need not contain an explicitly antiunion message in order to be part of an employer’s campaign or otherwise implicate the employee’s right to decide whether to express an opinion or remain silent.”  The majority held that the employees would reasonably perceive the flyer to be a component of the company’s campaign against union representation.  Just as the Union’s handbill was intended to promote community support for its organizing drive, the company’s flyer sought to generate community opposition to the organizing effort.

The majority also found that the flyer was not truthful in two respects.  First it said the protesters were “not” its employees.  This was not entirely true as some of the distributers were off duty employees.  Second, the flyer stated the employees had not chosen to unionize.  The Board majority found the petition presented demanding voluntary recognition showed a majority of employees had in fact authorized the Union to represent them.  While the employer has a right to decline voluntary recognition in favor of an NLRB conducted election, the flyer was misleading at best.

The dissenting Board member found that the flyer was neutral as to unionization and did not advocate either a pro or antiunion view and therefore would not require an employee to reveal any view concerning unionization.  He felt it was lawful to make employees distribute the flyer.

What should employers take away from this case?  First, you cannot force your employees to outwardly state whether they are for or against unionization.  As this case shows that statement does not have to be “explicit” but can be implied.  The current NLRB will apparently resolve all doubts in favor of employees.

Second, your communication to your employees and the public should be truthful.  It is not clear if the two “inaccurate” statements in the flyer are what tipped the decision in this case but it is clear the Board majority was bothered by the statements.  In any union situation the employer wants to be viewed as the best source for accurate information.  You want your employees coming to you and not the union if they have questions.  Be careful and not stretch the truth.

Finally, the current NLRB is favoring employees and unions with its decisions by expanding or reversing prior decisions.  Employers should be careful in any actions they take regarding union activity or employee interest in a union.  However, being careful does not mean do nothing.  A quick and lawful response to any union activity can sometimes make the difference in employee interest in the union.

Tesco d/b/a Fresh and Easy Neighborhood Market, 358 NLRB #65 (June 25, 2012).