On January 31, 2011, the National Labor Relations Board adopted a finding that Fresh & Easy Neighborhood Market violated the NLRA by maintaining an overbroad no-solicitation rule, interrogating employees, and creating an impression of surveillance. The Board also dismissed two claims that employees were unlawfully discharged for engaging in protected activity. Fresh & Easy Market operates convenience stores in Nevada, Arizona and California. The case involved one of the company’s convenience stores in Las Vegas, Nevada, which had been targeted for organizing by the United Food and Commercial Workers (UFCW) during 2009.

As part of the UFCW’s campaign, union organizers made unannounced visits to the homes of Fresh & Easy Market’s Las Vegas employees, which prompted several employee complaints. Managers informed the employees that they could send written complaints to the local UFCW office and to the company’s legal department, and several employees chose to do so. In following up on reports of unwelcome and confrontational home visits by the UFCW’s organizers, the Las Vegas store manager asked two employees whether they had sent complaint letters or had “spoken to the Union.” The NLRB General Counsel challenged this single conversation as unlawful interrogation that gave the employees the impression that their actions were under surveillance.

The Administrative Law Judge (ALJ) considered the “totality of the circumstances” surrounding the manager’s questions and found them to be unlawful 8(a)(1) “interrogation” and “surveillance” of the employees, and the Board upheld the ALJ’s findings. The ALJ also agreed with the NLRB General Counsel’s allegation that the employer’s handbook and intranet no-solicitation policies were unlawfully broad. Specifically, the ALJ found that the employer failed to make the necessary distinction in the company’s no-solicitation policy between solicitation during non-working time and in non-working areas. The Board did, however, find that the employer lawfully discharged two pro-union employees who violated the company’s attendance policies when each worker failed to timely notify managers and missed consecutive shifts while being locked up in a Las Vegas county jail.

What lessons can employers take away from the Board’s reasoning in the Fresh & Easy decision? First, it remains clear that the Board will continue to closely scrutinize employer actions during union organizing campaigns, including statements to employees by supervisors and managers, for any sign of anti-union sentiment. The ALJ disregarded the employees’ complaints about the union organizers’ contentious home visits, yet found the store manager’s single conversation to be unlawful interrogation and surveillance. Second, employers may continue to successfully defend discharge decisions during organizing campaigns when such decisions are supported by solid evidence and existing policies that establish the lawful, non-union-related basis for the termination. An employer’s careful review of facts and policies before making discharge decisions during union campaigns will make the decision more likely to withstand the Board’s post-campaign investigation.

Finally, prudent employers should pay close attention to the Board’s continuing efforts to challenge employer no-solicitation policies. In this case, the employer revised its no-solicitation policy during the union campaign (and the Board’s General Counsel conceded it was lawful as revised), but was unable to avoid the unlawful effect of its earlier policy. In light of the Board’s much-publicized case resulting in reinstatement for a worker who had been discharged for a Facebook posting criticizing her employer, cautious employers would benefit from taking steps to ensure that all no-solicitation policies are avoiding restricting employee activities during non-working time and in non-working areas. Finally, it is worth noting that the Board’s remedy required electronic posting of its orders, including on the company’s intranet and via e-mail if the employer “customarily communicates” with its employees by e-mail. It is safe to assume that the Board’s enforcement trends in these areas are here to stay for the foreseeable future.

This entry was written by Arturo Ross and Micah Heilbrun.

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