Allegheny Ludlum Corp. v. National Labor Relations Board
2002 U.S. App. LEXIS 17664, 301 F.3d 167, 170 L.R.R.M. (BNA) 2923 (2002)
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Rule of Law:
An employer's solicitation of employees to appear in an anti-union campaign video constitutes an unlawful poll unless the employer adheres to a five-part standard ensuring the solicitation is general, voluntary, and non-coercive. This standard requires a general announcement, no supervisory pressure, assurances against reprisals or rewards, absence of other coercive conduct, and a focus solely on soliciting consent.
Facts:
- In July 1994, the United Steelworkers of America (the 'Union') began a campaign to organize salaried, non-exempt employees at Allegheny Ludlum Corporation.
- An election was scheduled for December 2, 1994, and Allegheny Ludlum initiated a vigorous anti-union campaign.
- In mid-November 1994, Allegheny Ludlum's Manager of Communication Services, Mark Ziemianski, began producing an anti-union video.
- Ziemianski, accompanied by a camera crew, approached employees individually at their desks and asked for their consent to be videotaped waving and smiling.
- Some employees were given written notice about the video's purpose only after being filmed. The notice required them to contact a company manager to have their image removed.
- One employee, James Goralka, was required to submit a written request listing the names of co-workers who also wished to be edited out of the video.
- On subsequent days, notices were distributed in advance, but they still instructed employees who did not want to appear to affirmatively object to either the video crew or company management.
- The completed video, featuring footage of employees waving, was shown to all employees during business hours as part of the anti-union campaign.
Procedural Posture:
- Following an election in which the Union was defeated, the Union filed unfair labor practice charges against Allegheny Ludlum with the National Labor Relations Board (NLRB).
- An Administrative Law Judge (ALJ) found that Allegheny Ludlum had committed several unfair labor practices, including unlawfully polling employees through its video solicitation.
- The NLRB affirmed the ALJ's decision and adopted the recommended order, which included directing a second election.
- Allegheny Ludlum, the petitioner, filed a petition for review of the Board's order in the U.S. Court of Appeals for the District of Columbia Circuit.
- The D.C. Circuit enforced the Board's order on all charges except the video solicitation, remanding that issue to the Board with instructions to articulate a clearer policy.
- On remand, the NLRB issued a Supplemental Decision establishing a new five-part test for such solicitations and found that Allegheny Ludlum's conduct violated this test.
- Allegheny Ludlum petitioned the U.S. Court of Appeals for the Third Circuit for review of the NLRB's supplemental decision, and the NLRB, the respondent, cross-applied for enforcement of its order.
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Issue:
Does an employer commit an unfair labor practice that constitutes unlawful polling by individually soliciting employees to appear in an anti-union campaign video without providing specific assurances against reprisal or reward?
Opinions:
Majority - Sloviter
Yes, an employer commits an unfair labor practice that constitutes unlawful polling by individually soliciting employees to appear in an anti-union campaign video without providing specific assurances. This practice has the practical effect of compelling employees to make an observable choice that reveals their union sentiments, which tends to be coercive and interferes with their Section 7 rights. The court deferred to the NLRB's expertise in balancing an employer's free speech rights under Section 8(c) with employees' rights to organize freely under Section 8(a)(1). The court reasoned that the test for unlawful polling is objective, focusing on whether the employer's actions would tend to create a reasonable impression among employees that the employer is trying to discern their union sentiments, regardless of the employer's subjective intent. The court upheld the five-factor test articulated by the Board as a rational and permissible construction of the National Labor Relations Act, finding it provides a clear framework for employers while protecting employees from the coercive pressure of direct solicitation. The court concluded that substantial evidence supported the Board's finding that Allegheny Ludlum's conduct failed this test, as the company solicited employees individually, failed to provide the required assurances, and operated in a coercive atmosphere it had created through other unfair labor practices.
Analysis:
This decision solidifies the NLRB's standard for employer use of employee images in campaign materials, establishing a clear but strict safe harbor. By endorsing the five-factor test, the court effectively prohibits direct, individualized solicitations, pushing employers toward more general and less coercive methods of communication. The ruling clarifies the line between permissible employer speech and unlawful polling, emphasizing that forcing an 'observable choice' is inherently coercive. This precedent significantly impacts employer campaign strategies, requiring them to adopt more formal, transparent procedures to avoid unfair labor practice charges when creating visual campaign media.
