On March 1, 2024, the U.S. Court of Appeals for the D.C. Circuit clarified the rules that apply when employers distribute information and observe employees during union campaigns. The court found that a New York-based rehabilitation facility acted lawfully when it distributed flyers to employees and observed their reactions. The decision confirms that an employer’s sharing such information with employees in this manner constitutes an exercise of free speech expressly permitted by Section 8(c) of the National Labor Relations Act (NLRA). At the same time, the court found the employer’s new “Manager on Duty” program effectively solicited information about employees’ union sentiments. It therefore constituted “atypical monitoring” and unlawful surveillance prohibited by the NLRA. The decision serves as a helpful reminder about the line between what employers can and cannot do when communicating with employees during union campaigns.

Background

In 2019, 1199 SEIU United Healthcare Workers East (“Union”) launched a campaign to organize employees at the Northeast Center for Rehabilitation and Brain Injury (“Northeast”) . As part of Northeast’s response to the campaign, managers were asked to distribute informational flyers to employees containing material from an NLRA publication, discuss its contents with employees, note their reactions and responses and report back. At the same time, Northeast implemented a “Manager on Duty” program, during which managers made rounds throughout the facility.  Managers assigned to the “Manager on Duty” program were allegedly told to observe and report employee behavior to leadership and “monitor suspicious activities.”

The Union filed several unfair labor practice charges about Northeast’s campaign and the National Labor Relations Board’s (NLRB) general counsel issued a complaint. Following a hearing, an administrative law judge (ALJ) found that Northeast had committed unfair labor practices by discharging two employees for union activity, by engaging in unlawful surveillance and interrogation of employees and by terminating a manager who refused to surveil employees.

The NLRB, in a split decision, agreed with the ALJ’s finding that Northeast’s flyer campaign constituted unlawful surveillance because the purpose of the campaign was to “gain information about the union sentiments of its employees by observing their body language [and] reactions to leafletting.” The NLRB concluded that Northeast’s flyer distribution was akin to unlawful interrogation because it “reasonably cause[d] employees to reveal … clues about their union support.” The NLRB also concluded that the “Manager on Duty” program constituted unlawful surveillance. The NLRB also endorsed the ALJ’s finding that discharge of the two employees and the manager who refused to surveil employees violated the NLRA.

Northeast petitioned for review by the D.C. Circuit and the Board cross-petitioned for enforcement.

Court Finds “Manager on Duty” Program Did—But Flyer Campaign Did Not—Constitute Unlawful Surveillance

The court upheld the NLRB’s determination that Northeast violated the Act when it suspended and discharged two employees for union activities and discharged a manager for refusing to engage in surveillance. The court also endorsed the finding that Northeast had engaged in unlawful surveillance by implementing the “Manager on Duty” program. The court observed that the purpose of the program was to uncover employees’ union sentiments through the increased presence of managers in the facility at unusual times and locations. This “atypical monitoring” differed significantly from prior practice, the court said, and thus “had a reasonable tendency to ‘chill’ protected activity” in violation of Section 8(a)(1).

However, the court rejected the NLRB’s finding that Northeast’s distribution of informational flyers and observation of employee reactions constituted unlawful surveillance. Instead, the court explicitly held that such distribution and observation does not constitute unlawful surveillance under the NLRA. Rather, Northeast’s one-on-one persuasion efforts constituted protected exercise of its free speech rights under Section 8(c) of the NLRA. Backing employers’ right to engage in such flyering campaigns, the court said it favors “uninhibited, robust, and wide-open debate in labor disputes” and that “an employer is free to communicate to his employees any of his general views about unionism.” Absent evidence that Northeast’s managers threatened or questioned employees about improper topics when distributing the flyers, or that its persuasion efforts had a “reasonable tendency” to “intimidate” employees, the court refused to limit Northeast’s free speech rights as urged by the NLRB.

Key Takeaways for Employers

• An employer is free to communicate general views about unions to its employees.
• Distributing informational flyers and observing employee reactions, without threats or intimidation, does not constitute unlawful surveillance.
• Employers should train managers on what they can and cannot say during union campaigns to ensure communications are not construed as unlawful interrogation or threats.
• Employers must avoid “atypical monitoring” of employees, meaning conduct that is objectively so out of the ordinary it creates an impression of surveillance.