In a unanimous panel opinion issued on January 28, 2008, the Ninth Circuit upheld the National Labor Relations Board’s (NLRB) newly-announced three-factor test for determining whether employer surveillance activity of potential union members is coercive and therefore in violation of the National Labor Relations Act (NLRA). The case, Local Joint Executive Board of Las Vegas et al. v. NLRB, No. 05-75515, — F.3d –, 2008 WL 216935 (January 8, 2008), involved two incidents of alleged surveillance of union activities at Aladdin Gaming, LLC, in which Aladdin officials conferred with employees in the cafeteria who had been presented with union cards.
In the first incident, an Aladdin human resources official informed two buffet workers that if they signed the cards and the union were formed, they would have to pay union dues and would not necessarily receive improved benefits. Op. at 1331. The official’s conversation, which involved the buffet workers and representatives of the prospective union, lasted approximately eight minutes. In the second incident, a different Aladdin official informed a housekeeper signing a union card that she “shouldn’t be signing things that she wasn’t sure about,” then departed the scene. Op. at 1332.
Section 7 of the NLRA accords employers the privilege to observe public union activities on company premises, so long as the employer does not take actions that are out of the ordinary. However, Section 8(a)(1) of the NLRA states that “[i]t shall be an unfair labor practice for an employer – (1) to interfere with, restrain, or coerce employees in the exercise of [the right to associate freely and engage in certain speech in order to form unions] guaranteed in section 157 of this title.” 29 U.S.C. § 158(a)(1) (quoted in Op. at 1333). Whether employer observation rises to the level of unlawful and coercive surveillance depends on the circumstances of each case. See Op. at 1333 (quoting The Broadway, 267 N.L.R.B. 385, 400 (1983).
When considering the Aladdin case, the NLRB established a three-part test for determining whether employer observation is coercive: “[i]ndicia of coerciveness include the duration of the observation, the employer’s distance from its employees when observing them, and whether the employer engaged in other coercive behavior during its observation.” Aladdin Gaming, LLC, 345 N.L.R.B. No. 41 at *2. The Ninth Circuit found this test “rational and consistent” with the NLRA. Op. at 1334. Further, the Court found that the NLRB’s “findings of fact [were] supported by substantial evidence” and that “the agency correctly applied the law.” Op. at 1332. The Court therefore denied the petition for review of the NLRB decision.
The January 28, 2008 decision is the second recent decision related to the privacy of union organizers and members. In The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB No. 70 (December 16, 2007), the NLRB determined that an employer may prevent employees from sending union-related communications over work e-mail, so long as such a ban on non-work related communications is equally applied. For further details on this decision, see the Proskauer Rose Client Alert, located here.