The 7th Circuit recently upheld a decision from the National Labor Relations Board (NLRB) in a case involving Woodbridge Winery. The ruling cemented employees’ right to display a pro-union message on their clothing, despite the employer’s actions to remove the messaging from the workplace.
The National Labor Relations Act (NLRA) protects an employee’s right to self-organize. That is, the Act protects an employee’s right to form a union to bargain collectively with an employer. Employers are prohibited from interfering unless they can prove an employee’s exercise of the right substantially interfered with production, morale, or the organization’s public image.
NLRA Refresher
Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The Act is enforced by prohibiting employers from interfering with an employee’s free exercise of the rights. An employee need not prove an intentional interference, only that the employer’s actions “[tend] to interfere” with the exercise of the rights.
Section 7 protects an employee’s right to wear clothing or insignias bearing pro-union messages, but the right isn’t absolute. An employer may restrain the speech if it can show special circumstances justifying a ban on the clothing or message. For example, the employer could prove the message would:
- Jeopardize employee safety;
- Damage machinery or products;
- Exacerbate employee dissension; or
- Unreasonably interfere with a public image the employer has established, as part of its business plan, through appearance rules for its employees.
Facts
To make wine, you need grapes. To turn the grapes into wine, you need a group of workers. They typically work in the winery’s cellars.
In the Woodbridge Winery case, cellar workers formed a union that was challenged by the winery. The workers voted and formed a collective bargaining unit. The winery refused to bargain and challenged the certification before the NLRB. The Board ordered the winery to bargain, but it successfully challenged the order on appeal. That litigation is still pending.
Throughout the attempts at unionization, workplace tensions were high. At one point, a cellar worker wrote “Cellar Lives Matter” on the back of his work vest. He wore the vest for roughly 15 days. During the period, there were no complaints from any of his coworkers about the slogan. In fact, some reacted positively to the message.
The winery ordered the employee to stop wearing the vest, claiming numerous people had found the message offensive in the “current political situation.” The employee maintained the slogan wasn’t racially motivated and that he used it to focus people’s attention on the cellar workers’ plight. His theory: Since the “Black Lives Matter” slogan was so widely discussed, a play on those words would help his cause to unionize.
The local union filed charges, and the NLRB issued a consolidated unfair labor practices complaint against the winery. The union and the Board alleged the winery violated the NLRA by directing the employee to stop wearing the pro-union message. (The Board also raised other charges, but they aren’t pertinent to this article.) A hearing was held, and an administrative law judge found the winery had violated the Act, reasoning it couldn’t justify preventing the employee from engaging in pro-union speech in the workplace.
7th Circuit’s Ruling
The 7th Circuit upheld the ruling. While an employer can restrain pro-union speech in “special circumstances,” the appeals court found the winery failed to prove the circumstances existed. It failed to show:
- Any employee complained about the messaging;
- The insignia caused dissension or an unsafe workplace; or
- Its public image was tainted by the message.
Constellation Brands U.S. Operations, Inc. d/b/a Woodbridge Winery v. NLRB, nos. 19-1321 & 19-1549 (7th Cir., Mar. 30, 2021).
Bottom Line
Employees have the right to try to unionize. They can exercise the right through pro-union messaging in the workplace. An employer can restrain the messaging, however, by proving it unreasonably upsets the workplace, causes a safety issue, or otherwise adversely affects the organization’s image.
You are free to challenge potential unionization and take steps to quell the messaging in the workplace. Before chilling any such speech or messaging, however, you must be certain you can satisfy your burden of proof.
Heath P. Straka is a partner with Axley Brynelson, LLP, in Madison, Wisconsin. He can be reached at hstraka@axley.com.