Appeals Court Backs "Free" Speech in Union Campaigns

Ruling in a case involving steelmaker Allegheny Ludlum, the US Third Circuit Court of Appeals said bosses couldn’t directly solicit employees to be filmed. Instead, companies have to make a general call for volunteers, which reveals the video’s purpose and includes a promise that employees who don’t come forward won’t be subject to reprisals.

According to a report in the Legal Intelligencer, the appeals panel endorsed a five-part test developed by the US National Labor Relations Board (NLRB) for companies who want to film their workers. The NLRB guidelines were “a rational resolution of the tension between the employer’s First Amendment rights and the employee’s right to organize freely,” the court ruled.

Circuit Judge Dolores Sloviter wrote that the NLRB guidelines “allow an employer to videotape its employees, while at the same time barring the employer from placing an employee in the position of having to express openly a willingness or unwillingness to appear in an anti-union video.”

The appeals judges turned aside the company’s argument that such restrictions would make it “virtually impossible” for it to create a video to use in its anti-union campaign.

Organized Efforts

According to court papers, the United Steelworkers of America, which already represented Allegheny Ludlum’s production employees, began organizing to represent its salaried, non-exempt employees in 1994.

In mid-November, Allegheny Ludlum began production of a videotape for use in its campaign, seeking to persuade its salaried employees to vote against the union.

The company’s communications manager, Mark Ziemianski, personally supervised the filming by an outside camera crew. At first, Ziemianski directly approached the workers at their desks and asked if they would consent to be videotaped. Those who agreed were instructed to sit at their desks, turn to the camera, smile and wave.

In the election, held on December 2, 1994, workers voted against the union 237 to 225.

The union filed charges with the NLRB, and an administrative law judge found the company had committed five violations of the National Labor Relations Act.

During the court proceedings, the NLRB released its guidelines for using workers in company videos. The requirements include, that:

• the solicitation be in the form of a general announcement which discloses that the purpose of the filming and includes assurances that participation is voluntary
• employees are not pressured into making the decision in the presence of a supervisor
• there is no other coercive conduct connected with the employer’s announcement such as threats of reprisal or grants or promises of benefits to employees who participate in the video
• the employer has not created a coercive atmosphere by engaging in serious or pervasive unfair labor practices or other comparable coercive conduct
• the employer does not exceed the legitimate purpose of soliciting consent by seeking information concerning union matters or otherwise interfering with the statutory rights of employees.

The case is In Allegheny Ludlum Corp. v. National Labor Relations Board.