Employers Beware: Court of Appeals Gives Employers More Latitude in Banning Union Materials

Among the tools unions utilize in their campaigns to organize workers is the posting of pro-union materials on an employer's bulletin boards. A long line of decisions by the National Labor Relations Board ("Board") and the federal courts holds that an employer violates the National Labor Relations Act if it prohibits a union from posting materials, but allows other types of outside organizations to post materials on its bulletin boards. Thus, employers have grown accustomed to the need to maintain a high level of consistency in their application of policies banning any postings by outside organizations. A recent decision by the Seventh Circuit Court of Appeals (with federal appellate jurisdiction in Illinois, Indiana and Wisconsin), however, grants employers significantly more flexibility in their enforcement of no-posting rules.

In Fleming Companies v. National Labor Relations Board, the Court of Appeals overturned a Board decision and found that an employer did not violate the National Labor Relations Act ("NLRA") by prohibiting the posting of union materials on its bulletin boards, even though the employer had violated its own written policy by permitting employees to use the same bulletin boards for personal, non-work related items.

The Background

In 1997, a group of employees at a warehouse operated by Fleming Companies (the "Company") engaged in a union organizing campaign. The campaign culminated in an NLRB election, which the union lost. Following the election, the Company was charged with several violations of the NLRA, including threats to close if the union won the election, threats to enforce company rules more strictly because of the union organizing, and removal of union material from the Company's bulletin boards.

The Board Decision

The Board upheld all three charges of unlawful conduct and set aside the results of the election. With respect to the bulletin board issue, the Board acknowledged that the Company's handbook had made clear that its bulletin boards were to be used for company business only. However, the Board also found that the Company frequently allowed personal postings such as birthday cards, wedding invitations and personal items for sale. Although these personal postings were eventually removed from the bulletin boards, they were usually permitted to remain for some period of time. Because the Company violated its own posting policy by allowing postings of personal materials, the Board found that the Company's refusal to allow postings of union materials constituted a violation of Section 8(a)(1) of the NLRA (which generally prohibits an employer from interfering with, restraining or coercing employees in the exercise of the collective bargaining rights granted by the NLRA).

The Court Decision

The Company appealed the Board's decision to the Court of Appeals for the Seventh Circuit and the Board cross-applied to enforce its order. The Seventh Circuit enforced the Board's order with respect to the two threats the Company had made, but refused to find that the Company had violated the NLRA with respect to the use of its bulletin boards.

The Court agreed with the Board that an employer has the right to restrict access to its bulletin boards but cannot apply its posting policy discriminatorily against the posting of union materials. While acknowledging that the Company had in fact permitted the posting of personal notices, contrary to its written policy, the Court pointed to the Board's finding that the Company had never permitted the posting of any "organizational" material. Quoting from the Board's decision, the Court characterized "organizational" material as "any notice expressing ideas and designed to induce actions by employees as a group, such as an investment club, travel club, sports club, religious club or political club, or any similar club or committee." Because of the Company's actual practice of prohibiting organizational postings, the Court found that the Company did not violate the NLRA by prohibiting the posting of union materials.

The Court drew upon a distinction made by the Board itself between purely personal items and organizational materials. However, contrary to the Board, the Court found that even though the Company acted contrary to its own policy by allowing the personal postings, it nevertheless had acted consistently with that policy by denying access to its bulletin boards for postings of any type of organizational material, including union materials.

Discussion

Employers may ask whether they can rely upon the Fleming decision to prohibit the posting of union materials while making exceptions to their posting policy by allowing the posting of personal notices. This would be risky. In the first place, the Board's position is contrary to that of the Seventh Circuit on this issue and the Board may well not consider itself bound by the Court's Fleming decision. But, in addition, applying the distinction made by the Court to justify exceptions for personal notices may be a far more difficult chore for employers than might be apparent from an initial reading of the Fleming decision. "Organizational" material is defined by both the Court and the Board as encompassing notices "expressing ideas and designed to induce actions by employees as a group. . ." A notice that "we are forming a group to go to the ballpark this afternoon" would not be considered organizational in nature by the Fleming court. A notice to attend a meeting, however, might or might not be "organizational," depending on what the meeting was about, regardless of there was any mention of a club or a group. Thus, employers attempting to apply the Fleming decision by distinguishing between personal and organizational materials may have a hard time doing it correctly.

Conclusion

Generally, an employer should not deviate from a written policy, whether the policy involves bulletin board use or otherwise. If changes in a written policy are appropriate, the policy should be amended or rewritten. Even drafting a bulletin board policy from scratch to conform to the Court's opinion in Fleming would involve many of the same types of difficulties discussed above. The only certain way to avoid opening up an employer's bulletin boards to postings of union material, is to adopt a strict policy limiting use of those bulletin boards to company-related material and then to enforce that policy without exceptions.

Wildman Harrold is a full service law firm with more than 200 attorneys based in Chicago, Illinois. The Employment and Labor Practice, consisting of more than 15 attorneys and skilled paraprofessionals, represents management in employment, labor relations, employee benefits matters, and related litigation. The group enjoys a reputation for excellence in all areas of labor relations and employment law. If you would like to discuss any of the matters covered by this article further, please contact Michael Rosenblum at 312.201.2129 or via email at rosenblum@wildmanharrold.com or Neil Wolf at 312.201.2766 or via email at wolf@wildmanharrold.com.

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