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NLRB: No Section 7 Violation Occurred When Employer Prohibited Employee From Displaying Prounion Signage at Work


North Star Memorial Group, LLC - NLRB


Facts:  (Note, this brief only looks at the prounion signage portion of the unfair labor practice charge.)

Joel Strube (“Strube”) worked for North Star Memorial Group, LLC’s (“North Star”) cemetery as a groundskeeper.  It was standard for groundskeepers to park their personal vehicles in “yard parking,” which was adjacent to North Star’s storage facility, break room, and lockers.  One day, Strube parked his motorcycle in the first space in yard parking, directly across from an area where a burial service was taking place.  On Strube’s motorcycle, he had a display that read “Unfair wage proposals for senior employees.”  Several of the mourners at the service complained about the prounion signage.  Grounds Superintendent, Lorenzo Molina (“Molina”), later appeared and parked his truck in front of Strube’s motorcycle so that the signage could not be seen by the mourners.  Several of the mourners expressed to Molina their concern with the signage.  Molina thereafter asked Strube to remove the signage but Strube refused.  After the service was over, Molina moved his truck so it no longer blocked the signage.

On two separate days, Molina again temporarily parked his truck in front of Strube’s motorcycle so that the signage was not visible to mourners attending burial services.

After the filing of an unfair labor practice charge, the Administrative Law Judge held that North Star’s request for Strube to remove the signage was unlawfully coercive.  As well, it was found that Molina’s parking of his truck in front of Strube’s motorcycle unlawfully prevented Strube from soliciting support from North Star’s patrons and other employees.  The NLRB proceeded to review the Judge’s decision.

Analysis:  At the outset, the NLRB noted that there was no precedent that directly addressed the circumstances in this situation.  Nevertheless, a string of relevant caselaw was reviewed to provide guidance.

A 1979 U.S. Supreme Court case had held that hospitals have a special duty to maintain a peaceful and relaxed atmosphere in order to facilitate the healing process.  The NLRB had also held in prior decisions that the primary function of a hospital is patient care and a tranquil atmosphere is essential to carrying out that function.  As a result, “hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation that are generally permitted.”  Based upon this line of reasoning, the NLRB had held that restrictions on Section 7 rights (under the National Labor Relations Act) in immediate patient care areas are presumptively valid.

Drawing upon this precedent, the NLRB held that funeral homes and cemeteries, like hospitals, constitute environments where the need for “quiet and peace fo mind” can justify more stringent prohibitions on solicitation.  The NLRB pointed out that in fact some mourners had even expressed their concern over Strube’s prounion signage and how it upset them.  As a result, the NLRB found that North Star could lawfully prohibit Strube from soliciting such support during a burial service when Strube’s signage was clearly visible to the mourners at the burial site.  Further, there was no evidence that North Star had selectively banned Section 7 related material.  In fact, North Star allowed Strube to display his signage before and after the burial services (as well as other times.)

The Takeaway:  This was an interesting decision, in part because the NLRB had not previously weighed in on the matter of whether an employee’s prounion signage at a cemetery could be prohibited.  Had this been a different work situation, I think it likely that the employer would have had an uphill battle in establishing why an unfair labor practice had not occurred.  For instance, if this was a tanning salon, a pizza restaurant, a glass manufacturing plant, etc., I think it is likely that the employee’s choice to display prounion signage would be found to be lawful.  However, given the sensitive nature of Strube’s workplace, North Star’s decision to prohibit the display of this signage was able to skirt the unfair labor practice charge.

Date:  July 30, 2020


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