## Facts

- Allegheny Ludlum Corp., a specialty steel manufacturer, faced a union organizing effort by the United Steelworkers among salaried, non-exempt employees.
- Before a Board-conducted representation election, the employer produced an anti-union campaign video featuring employees.
- During initial filming, a manager went desk-to-desk asking employees to consent to being videotaped; some employees had little or no advance notice and some later asked to be removed.
- The employer issued written notices stating that employees who did not want to appear had to either (a) notify a company director or company counsel, or (b) advise the video crew.
- The employer showed the video to employees during business hours as part of its campaign.
- The union lost the election narrowly and filed unfair labor practice charges alleging the solicitation for video participation coerced employees and tainted the election.
- The NLRB found an unfair labor practice and set aside the election; after a prior appellate remand demanding a clearer standard reconciling polling doctrine with § 8(c), the Board issued a supplemental decision reaffirming liability under its articulated standard.

## Issues

1. Whether the NLRB’s post-remand standard for evaluating employer solicitation of employees to participate in an anti-union campaign video was rational, adequately articulated, and consistent with the NLRA and § 8(c).
2. Whether, under that standard, Allegheny’s methods of soliciting and structuring opt-outs for video participation reasonably tended to interfere with, restrain, or coerce employees in the exercise of § 7 rights.
3. Whether substantial evidence supported the unfair labor practice finding and whether the Board’s remedial order should be enforced.

## Decision

- The Third Circuit denied the employer’s petition for review and granted the NLRB’s cross-application for enforcement.
- The court upheld the Board’s standard treating employer solicitation for campaign-video participation as conduct that can resemble polling because it tends to reveal or signal union sympathies.
- The court held the Board reasonably concluded that Allegheny’s solicitation practices would reasonably tend to coerce employees in exercising § 7 rights.
- The court accepted the Board’s distinction between protected campaign advocacy under § 8(c) and coercive conduct used to obtain employee participation.

## Legal Principles

- The NLRB may regulate employer conduct during organizing campaigns when it reasonably tends to interfere with, restrain, or coerce employees in the exercise of § 7 rights.
- Employer solicitation of employees to appear in campaign materials may be evaluated under a polling-type analysis when the solicitation tends to identify employees’ union sentiments and lacks protections against pressure (including anonymity and freedom from employer-initiated prompting).
- Section 8(c) protects nonthreatening employer expression, but does not bar the Board from restricting conduct that has an independent coercive effect, even if related to otherwise protected speech.
- Reviewing courts generally defer to the NLRB’s reasonable interpretations of the NLRA and uphold findings supported by substantial evidence.

## Conclusion

The Third Circuit enforced the NLRB’s order, holding that the Board permissibly treated management-initiated solicitation of employee appearances in an anti-union video as potentially coercive conduct that could reveal union sympathies, and that Allegheny’s desk-to-desk solicitation and opt-out structure reasonably tended to interfere with employees’ § 7 rights notwithstanding § 8(c).


Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167 (3d Cir. 2002)