Employers, particularly outward facing ones, can find external union protest activity in front of the business to be annoying. The NLRB recently ruled that the employer cannot enlist employees to assist in countering such efforts. In Fresh & Easy Neighborhood Market, Inc., 358 NLRB No. 65 (June 25, 2012).pdf, the employer, an operator of grocery stores, was faced with continued union organizing activities at a Los Angeles area store. The union presented a petition, allegedly signed by a majority of employees, stating that the union represented the employees. The employer refused to recognize the union and, asserting its rights, stated it would not recognize the union without a government supervised, secret ballot election.
Instead of filing a petition for an election, the union took to the streets and among other things handed out leaflets at the store entrance. The leaflets implored customers to act: "Tell Fresh & Easy: Let Your Workers Freely Choose a Union." Some customers were angry about the leaflets and complained to management.
The employer decided to counter the activity by distributing its own flyer, along with a $5 store coupon. The employer's flyer had five bullet points:
"The protestors are not our employees and have been hired by the ...union" "The [union] wants [us] to unionize" "We've told the [union] 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" The employer did what it always did when handing out coupons to customers, it instructed its employees to hand the flyer and coupon directly to customers. Two employees complained about having to hand out the flyer.
The union filed an unfair labor practice charge alleging that the employer's requirement that employees hand out the flyer to customers interfered with employees' protected activity in violation of Section 8(a)(1) of the Act. The administrative law judge dismissed the allegation, concluding that the flyer was not an "anti-union" communication nor did it otherwise express an opinion on unionization.
The Board reversed, finding a violation. The Board's basis for finding a violation was a string of cases from the actual union campaign context where employees were required by the employer to make an "observable choice" on the issue of the union. For example, when during an election...