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Employers cannot directly solicit workers to appear in a video to be used in the company’s campaign against union organizers, but instead must ask for volunteers in a “general announcement” that discloses the purpose of the film and promises that workers who don’t participate won’t suffer reprisals, the 3rd U.S. Circuit Court of Appeals has ruled. In Allegheny Ludlum Corp. v. National Labor Relations Board, a unanimous three-judge panel rejected the argument that such a rule violates an employer’s free-speech rights and makes it “virtually impossible” for an employer to create a videotape for use in an anti-union campaign. Instead, the court found that the five-part test established by the NLRB to govern situations in which a company wants to produce a video with worker participants was “a rational resolution of the tension between the employer’s First Amendment rights and the employee’s right to organize freely.” Writing for the court, 3rd Circuit Judge Dolores K. Sloviter found that the NLRB’s requirements “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.” Sloviter was joined by 3rd Circuit Judge Thomas L. Ambro and visiting Senior U.S. District Judge Milton I. Shadur of the Northern District of Illinois. According to court papers, in 1994, the United Steelworkers of America, which already represented Allegheny Ludlum’s production employees, began organizing to represent its salaried, non-exempt employees. The union filed an election petition with the NLRB and an election was scheduled for December 1994. Prior to the election, Allegheny Ludlum campaigned vigorously against the union, hiring outside consultants to formulate an anti-union campaign strategy. 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. The filming took place on the premises of the company over a period of three days. 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. Although some employees were given advance written notice explaining that the video would be used in the company’s election campaign and that they could decline to participate, others were given no notice until after they were filmed. The notice explained that anyone who did not wish to appear in the video could contact one of two company managers to be edited out of the video. On the second and third day of filming, due to complaints by some workers, Ziemianski prepared written notices that were distributed to employees in advance, either by handing them out when the film crew entered work areas or by interoffice mail. Ultimately, the company filmed about 80 employees, or 17 percent of the voting unit. About 30 employees later asked to be excluded from the video, and others declined to appear when approached by the film crew. Eventually the employees were required to watch the finished video during business hours. In the video, employees expressed their satisfaction with the status quo, their dissatisfaction with union representation at prior employers or in different units of Allegheny Ludlum, and their discontent with the union’s representation in particular. Several employees noted that unionized segments of Allegheny Ludlum had experienced layoffs, while a narrator noted that non-union employees had experienced no layoffs since 1980. The video concluded with footage of employees waving at the camera, accompanied by upbeat music containing such lyrics as “Allegheny Ludlum is you and me,” and stating reasons to vote against union representation. In the election, held on Dec. 2, 1994, the votes against union representation exceeded the votes in favor, 237 to 225. The union filed charges with the NLRB, and an administrative law judge found the company had committed five violations of � 8(a)(1) of the National Labor Relations Act. On the issue of the video, the ALJ found that the company’s solicitations amounted to an illegal “polling” of the workers about their union sentiments. The ALJ also found that workers were threatened with more onerous working conditions; that one employee was illegally interrogated about his union support; that comments by the company’s CEO were threatening; and that one worker was fired after the election in retaliation for his union activity. The ALJ ordered a second election and reinstatement of the fired worker. After the NLRB upheld the decision, Allegheny Ludlum appealed to the U.S. Court of Appeals for the D.C. Circuit In 1997, the D.C. Circuit enforced the order, but ordered the NLRB to study the issue of the video and to articulate a “clearer” policy of how employers can produce videos with worker participants without running the risk of later being found to have illegally polled their employees. On remand, the NLRB announced a five-part test. Employers must meet all five prongs of the test to avoid liability. � The solicitation is in the form of a general announcement which discloses that the purpose of the filming is to use the employee’s picture in a campaign video, and includes assurances that participation is voluntary, that nonparticipation will not result in reprisals, and that participation will not result in rewards or benefits; � 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; and � 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. In doing so, the NLRB said it looked for guidance to cases that examined employers’ distribution of anti-union paraphernalia to employees. In those cases, the board said, employers have been held liable where they directly offered the anti-union paraphernalia to employees, placing them in the “position of having to accept or reject the employer’s proffer, thereby disclosing their preference for or against the union.” By contrast, the board said, no violation was found in cases where the company made anti-union paraphernalia available from a central location and there was no evidence of employer pressure to reveal a preference. Applying the new requirements, the board found that Allegheny Ludlum had committed a violation “by approaching individual employees and asking them to consent to be filmed for the purpose of a campaign videotape, and by requiring employees to register an objection with [company management] in order to avoid being included in its campaign videotape.” In its second appeal, Allegheny Ludlum urged the 3rd Circuit to overturn the new test, arguing that the five requirements are “arbitrary, irrational and violate an employer’s free speech rights … as well as the board’s obligation to maintain neutrality.” But Sloviter found that the court owed the NLRB an especially deferential review, and that it must uphold NLRB requirements “if they are rational and consistent” and if the board’s explication “is not inadequate, irrational or arbitrary.” Sloviter rejected Allegheny Ludlum’s argument that its actions did not constitute a “poll” because its purpose in seeking to videotape its employees was not to discern their views toward the union. “Subjective intent is not an element of the definition of ‘polling.’ … The test is an objective test in which the employer’s intent is irrelevant and the proper inquiry is the impression of a reasonable employee,” Sloviter wrote. “Whether a particular employee opted not to participate in the company’s videotape for reasons of union loyalty or for wholly unrelated reasons is irrelevant because the inquiry focuses on whether the solicitations would ‘tend to create’ an impression that the company was trying to discern union sentiments, not whether they actually created such an impression,” Sloviter wrote. Likewise, Sloviter rejected the company’s argument that the five-factor test is unduly burdensome because it effectively eliminates an employer’s ability to videotape employees in the workplace during an election campaign. “This contention considerably overstates the prohibition. As the board’s decision clearly states, an employer may make a general announcement regarding its desire to videotape employees for use in a campaign video and subsequently, videotape anyone who comes forward, as long as it makes the necessary assurances,” Sloviter wrote. “These guidelines do not make it ‘virtually impossible for an employer to videotape its employees in the workplace during the campaign effort’ as Allegheny Ludlum contends, nor has Allegheny Ludlum shown why a general announcement is ‘simply not an effective means’ for securing participants,” Sloviter wrote. Sloviter also found there was “ample evidence” to support the board’s finding that many employees “were subjected to requests to participate, which were coordinated by the [company's] manager of communications.” Allegheny Ludlum was represented in the appeal by attorneys Vincent J. Pentima and J. Anthony Messina of Klett Rooney Lieber & Schorling in Philadelphia. NLRB attorney James M. Oleske Jr. argued the case and was joined on the brief by NLRB General Counsel Arthur F. Rosenfeld, Deputy General Counsel John E. Higgins Jr., Associate General Counsel John H. Ferguson, Deputy Associate General Counsel Aileen A. Armstrong and Supervisory Attorney Robert J. Englehart. The United Steelworkers of America intervened in the case and was represented by in-house counsel Richard J. Brean.

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