HR's interruptions were not unlawful surveillance

HR Magazine,  April, 2008  by Chris Arbery,  Roger Gustafson

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Local Joint Executive Board of Las Vegas v. NLRB, 9th Cir., No. 05-75515 (Jan. 28, 2008).

The 9th U.S. Circuit Court of Appeals deferred to a determination by the National Labor Relations Board (NLRB) that an employer's brief interruption of union organizing activities in a lunchroom was not unlawful surveillance.

In May 2003, two local unions began a campaign to organize workers in the housekeeping, food and beverage departments of a casino in Las Vegas. On two different occasions in June 2003, managers of the casino's human resource department interrupted union-related discussions by employees in a dining room open to employees and managers.

After briefly observing two pro-union employees soliciting union-card signatures, the vice president of human resources, Tracy Sapien, approached the group and interrupted. Sapien told the workers that she wanted to make sure they had all the facts before they signed the cards, and that signing a union card was like signing a "legal and binding" document that could result in union dues of $32.50 each month if the union won the election. She also opined that the workers could not count on different health benefits even if the union's campaign was successful. The entire conversation with Sapien lasted about eight minutes.

The second incident occurred a few days later. A union committee leader, Azucena Felix, was speaking to a table full of housekeepers in the employee dining room about signing union cards. The casino's HR director, Stacey Briand, approached the workers and told an employee, who was in the process of signing a union card, that she "shouldn't be signing things that she wasn't sure about, because what she was signing was something like a contract," and that Felix was probably promising something that she wasn't going to be able to give her.

Because the employee signing the card was not fluent in English, Felix translated Briand's comments into Spanish. When Briand asked what she was saying, Felix explained that she was just translating. Briand then left the table.

The unions filed unfair labor practice charges against the employer. An administrative law judge concluded that the casino had engaged in illegal surveillance in violation of National Labor Relations Act, but the NLRB reversed.

On appeal, the 9th Circuit deferred to the board's interpretation, rejecting the union's argument that merely interrupting protected union activity, even to express opinions, is unlawful. The court also agreed with the board's finding that Sapien's and Briand's statements were protected by the National Labor Relations Act because there was no evidence that they expressed any "threat of reprisal or promise of benefit" that would strip the employer's free speech rights under the law.

By Chris Arbery and Roger Gustafson, attorneys at Hunton & Williams LLP in Atlanta.

RELATED ARTICLE: Professional Pointer

This case highlights the fact that employers may take proactive steps to ensure that employees are fully informed about the prospect of union representation.

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