Eighth Circuit Reverses NLRB’s Coercion and Impression of Surveillance Rulings

Practical Law Legal Update 3-616-7285 (Approx. 6 pages)

Eighth Circuit Reverses NLRB’s Coercion and Impression of Surveillance Rulings

by Practical Law Labor & Employment

Background

Greater Omaha Packing Co., Inc. (Omaha) employed several hundred line workers in its beef fabrication plant. In 2012, a large number of employees were arrested or quit when the US Department of Homeland Security could not verify their employment eligibility. The remaining employees complained of the meat conveyer speed and higher work loads. In mid-April, about 12 employees (including Carlos Zamora) left their work stations to protest working conditions. At the end of the day, Zamora complained to plant manager Jose Correa about the meat conveyer speeds and employee compensation levels, and Correa said he would discuss the issues with management. When pay increases did not come, Jorge Degante Enriquez (Degante) planned a 10:00 a.m. work stoppage for May 14, 2012. Zamora and Susana Salgado Martinez (Salgado) were also aware of the planned stoppage. On the morning of May 14th, all three employees had separate meetings with Correa and fabrication manager Eliseo Garcia. During the meetings, all three employees were fired. The two managers and three employees provided conflicting accounts of the meetings. The employees argued that their employment was terminated because they were involved in a potential work stoppage and complained about their pay. Correa and Garcia argued that they terminated the workers' employment due to issues of repeated tardiness, insubordination, threats of violence and leaving the line without permission. No work stoppage occurred on May 14th.

The General Counsel of the NLRB charged Omaha with:

Wrongfully terminating the three workers' employment for engaging in protected concerted activities.
Interrogating the workers about their protected activities.
Creating the impression that it was surveilling the workers' protected concerted activities.

After an evidentiary hearing, the NLRB's administrative law judge (ALJ) found that Omaha:

Violated Section 8(a)(1) of the NLRA by wrongfully terminating the three workers' employment for engaging in protected concerted activities.
Did not make coercive statements regarding the employees' protected activities.
Did not create the impression that it was surveilling the workers' protected concerted activities.

When Omaha and the General Counsel cross-appealed, the Board:

Upheld the wrongful termination rulings.
Found that Correa asking Zamora what he wanted and stating that Zamora had a good job may not have been interrogation but were nonetheless coercive.
Found that Garcia and Correa's statements accusing Degante and Salgado of being leaders of the stoppage created the impression of wrongful surveillance.

For more information about the Board's decision, see Legal Update, Employer that Revealed Anonymous Intelligence About Work Stoppage Created Unlawful Impression of Surveillance: NLRB.

Omaha petitioned to set aside the Board's Order and the General Counsel petitioned to enforce it.

Outcome

The US Court of Appeals for the Eight Circuit:

Declined to enforce the Board's interrogation and surveillance rulings.
Affirmed the wrongful termination ruling, granting the petition to enforce the Board's order.

In declining to enforce the portion of the Board's Order concerning coercion, the Eighth Circuit noted that:

Section 8(a)(1) of the NLRA prohibits employers from coercing employees in the exercise of their rights, but Section 8(c) explicitly recognizes that not all displeased communications from an employer to an employee are coercive. Rather, Section 8(c) provides that statements are not evidence of an unfair labor practice if they do not contain a threat of reprisal or force or promise of benefit (29 U.S.C. § 158(c)).
A statement must contain a threat of reprisal or force in order to violate Section 8(a)(1).
The relevant question is whether management's statements reasonably tend to coerce an employee not to engage in concerted activity, not whether management expressed displeasure in the employees' activity.

The Eighth Circuit found that:

To constitute coercion, the statement itself (not the act of terminating the employee's employment) must coerce employees not to exercise their rights.
Zamora's pre-termination discussion with management addressed money, not terms and conditions of employment.
Correa's questions at the May 14th meeting continued the lawful conversation he had with Zamora in April. This differs from other cases in which employers used words conveying threats of reprisal (see NLRB v. Intertherm, Inc., 596 F.2d 267, 273-76 (8th Cir. 1979); NLRB v. Crystal Tire Co., 410 F.2d 916, 918 (8th Cir. 1969)).
Since management fired Zamora and escorted him from the building, he did not relate to other employees his complaints about management's comments, so other employees were not coerced by management's statement.
Zamora's firing might have coerced his co-workers not to exercise their right to engage in concerted activity, but they were not coerced by management's pre-firing comments to Zamora.

In declining to enforce the portion of the Board's Order concerning wrongful surveillance, the Eighth Circuit noted that:

An employer's right to non-coercively gather information is protected by Section 8(c).
An employer violates Section 8(a)(1) by surveilling its employees' union activities in a way that could inhibit employees ability to pursue union activity without fear of coercion or retaliation by the employer (NLRB v. Ralph Printing & Litographing Co., 379 F.2d 687, 691 (8th Cir. 1967)).
Absent a tendency to coerce, surveillance or creating the impression of surveillance does not violate Section 8(a)(1) (Belcher Towing Co. v. NLRB, 726 F.2d 705, 708 (11th Cir. 1984)).
In some recent cases, the Board has ignored the important element of coercion and determined that an employer creates an unlawful impression of surveillance when a reasonable employee would assume from the employer's statement that their union or protected activities are under surveillance (see McClain & Co., Inc., 358 N.L.R.B. No. 118, at *5 (Aug. 31, 2012)).
Most employer surveillance cases involve union organizing or elections, with the surveillance issue typically involving the employer's other anti-union unfair labor practices (where it is reasonable to infer coercion).
When the NLRB does not find the requisite coercion, and coercion is not apparent to the reviewing court, an order about creating the impression of surveillance should not be enforced.

The Eight Circuit found that:

The Board misguidedly applied the McClain standard in finding that Omaha wrongfully created the impression of surveillance.
In this matter, the employer was not gathering information on ongoing union activities. Rather, the Board found unlawful surveillance of non-union employees acting together to protest working conditions, a situation in which it is unlikely that the employer's statement would be intended to coerce.
The Board did not explain how the statements from Omaha's management, accusing the employees of being leaders of the stoppage, could have coerced employees to refrain from engaging in the planned stoppage.
The statements did not coerce Degante or Salgado's protected activity because they were terminated immediately, and the statements did not coerce the other employees not to engage in a work stoppage because the other employees were not made aware of the statements.
Since employees communicated widely about the planned work stoppage, it is unlikely that Omaha would be perceived as needing surveillance to learn of the upcoming work stoppage.

In affirming the Board's wrongful termination ruling, the Eighth Circuit noted that:

It is the ALJ's sole prerogative to make credibility findings when the Board faces conflicting testimony (DeQueen Gen. Hosp. v. NLRB, 744 F.2d 612, 617 (8th Cir. 1984)).
The court must only assess whether substantial evidence supports the Board's findings.

The Eighth Circuit found that:

No extraordinary circumstances made the court question the ALJ's credibility findings.
All three terminated employees testified to the work stoppage and two testified that the managers accused them of organizing the activity.
Substantial evidence existed that Omaha knew of the protected activity and that it was a motivating factor in the discharges.
The ultimate lack of a work stoppage was irrelevant because the termination of three of the plan's leaders may have caused others to abort the plan.

Practical Implications

In a time when many recent NLRB orders and decisions have favored the expansion of employee rights and extended protections for questionable employee conduct, the Eighth Circuit's decision in Omaha limited that trend by providing employers some protection when discussing work-related matters with their employees. The court enforced the portion of the Board's order deeming the employees' terminations unlawful, since the employees' protected activity was a motivating factor in Omaha's decision. However, the court's decision in Omaha provides a reminder and clarification that:

Unless an employer's statement itself (not the termination of employment) coerces an employee not to exercise his rights, the employer's statement is protected by Section 8(c) and not a violation of Section 8(a)(1).
Coercion is a necessary element for a finding of unlawful surveillance.

Eighth Circuit Reverses NLRB’s Coercion and Impression of Surveillance Rulings | Practical Law