Attention Merit Shop Employers! Thinking of Going Hollywood? Read This First
By David S Farkas
Nowadays, in the era of do-it-yourself film editing and hand-held video cameras, everyone’s a movie producer. But as one company recently found out, nothing complicates making a movie like a union.
Our story begins way back in 1994, when Allegheny Ludlum, a Pennsylvania steel manufacturer, was involved in a battle with the United Steelworkers to keep the union out of their office personnel. (The production workers were already unionized.) Allegheny hit upon the idea of videotaping the employees to show how happy they were without the union. Employees in the video apparently were instructed to “sit at their desks, turn to the camera, smile and wave.” Sounds pretty harmless, right? Not likely where a union is involved in the fray.
Some employees complained to the union that they did not want to be in the video. After the representation election, which Allegheny won by a vote of 237 to 225, the union filed charges with the NLRB. Among their allegations was this gem: The company had unlawfully interrogated the employees about their opinion on the union by individually asking employees if they wished to be in the video or not.
After considering the issue, the Administrative Law Judge (ALJ) held that the asking of employees whether they wanted to be included in the video constituted illegal polling about the employees’ union sympathies or desires. The judge ordered a new election. After the Board affirmed the ALJ’s decision, Allegheny appealed the decision to the U.S. District Court in Washington, D.C.
However, that court effectively ducked the central issue, namely, when and under what circumstances may an employer videotape employees for purposes of a pro-management video. The court found that the NLRB was the body properly empowered to make such determinations and, accordingly, remanded the case to the NLRB for clarification of the issue. The NLRB, in turn, came up with the following five rules:
- The solicitation to appear in the video must be general, not personal, and must include assurances that a refusal to participate will not result in reprisal against the employee.
- Employees shall not be pressured to decide in the presence of a supervisor.
- There can be no other coercive conduct connected with the announcement.
- The employer cannot create a coercive atmosphere by engaging in other forms of unfair labor practices.
- The employer cannot extend the legitimate purpose of soliciting consent to appear in the video to seeking information about the Union.
The critical rule in this case was the first one. Since Allegheny’s solicitation involved a face-to-face-question as to whether the employee wished to participate or not, the court held that Allegheny violated the newly formulated rule, and ordered a new election. The company appealed this decision to the Court of Appeals in the Third Circuit, which upheld the lower court’s decision.
Clearly this decision presents an important development in the high-tension arena of representation campaigns. The valuable lesson here is that simply because new rules have not been crafted to deal with emerging uses of technology does not mean that the old rules do not still apply under new circumstances. Moreover, this case reiterates the importance of good legal counsel that deal with the increasingly complex rules that apply to representation elections.
Ross, Brittain & Schonberg has experienced labor relations attorneys to help your company navigate through the thicket of representation elections. Contact Alan Ross or David Farkas for more information regarding this issue or any other labor issue or concern facing your company.