Employers Reminded to Avoid Unilateral Changes and Surveillance of Union Activity

Kollman & Saucier
Kollman & Saucier

The Fourth Circuit, in an unpublished opinion, recently enforced a National Labor Relations Board decision, which concluded that a Maryland employer committed numerous unfair labor practices when it engaged in surveillance of union activities, unilaterally modified the terms and conditions of employment, and unlawfully terminated an employee.  The case, Pessoa Construction Company v. NLRB, Nos. 11-1688, 11-1776 (4th Cir. Jan. 25, 2013) (unpublished), serves as a useful reminder of the type of conduct that is unlawful under the National Labor Relations Act.

Pessoa Construction, a highway construction contractor, was unionized in 2008.  Shortly after the union was certified, William Membrino, a Pessoa employee raised a variety of questions at a union meeting.  Soon thereafter, the company’s owner, Julio Pessoa, asked another employee to identify whether Membrino participated in the meeting.  At a subsequent meeting between Pessoa and Membrino, the owner informed Membrino that he was aware of the questions raised at the union meeting.  Four days later, Membrino and another employee were informed that they were no longer permitted to drive their company vehicles to and from job sites.  No other employee received such notice.  A few weeks later, Membrino was involved in an accident and was terminated.

These events were sufficient to support three unfair labor practices.  First, Pessoa Construction created the impression that Membrino’s union activities were under surveillance.  As the Fourth Circuit noted, a single conversation can violate union members’ rights if the statement contains “sufficiently specific information to convey the impression that the employer or its agents has conducted union surveillance.”  Pessoa’s comment that the company was monitoring employee participation in union meetings and the opinions expressed therein satisfied this standard.

Second, the company unilaterally changed the terms and conditions of employment by changing the vehicle-use policy without bargaining with the union.  The change to the vehicle-use policy constituted an adverse employment action because it required affected employees to find their own transportation.  The NLRA requires employers to engage in collective bargaining with a union regarding terms and conditions of employment and unilateral change without discussion violates the NLRA.

Third, Pessoa unlawfully responded to Membrino’s union participation by specifically disallowing his use of the company truck and terminating his employment.  The change in policy, accompanied by Membrino’s union activity and the closely-timed decision demonstrated Pessoa’s union animus.

Pessoa Construction’s arguments to the contrary were unavailing because the company merely changed its vehicle-use policy as to two employees and had never terminated an employee for an accident such as the one Membrino was involved in.

The Fourth Circuit enforced the Board’s decision ordering Pessoa to: 1) reinstate Membrino with back pay; 2) make both Membrino and the other employee whole for the unilateral change to the vehicle use policy; 3) post a notice of union member rights at job sites.


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