Don’t Say That! … Or Do? New Court Guidance on Employer Statements in Union Organizing Campaigns

Misconceptions Here, There and Everywhere.

I often advise employers large and small on what to do (and what not to do) during union organizing campaigns. I am continually surprised at how many employers have misconceptions about the do’s and don’ts when a campaign is underway. I can’t tell you how many times clients have told me they thought that, under the law, when a union is campaigning to represent workers, managers and supervisors must maintain strict silence and not say anything about the pros and cons of unionizing. This simply is not true. Federal labor law legally protects employers’ right to speak out: Section 8 (c) of the National Labor Relations Act allows employers to express “any views, argument or opinion” as long as they do not make threats or promise benefits.

So, What Can An Employer Say?

Distinguishing advocacy, which the law protects, from threats and promises, is not easy. When an employer cautions employees about the negative consequences of joining a union, isn’t it threatening that unionization could be bad for workers? The U.S. Supreme Court has said that to qualify as lawful advocacy, an employer’s prediction of adverse effects of unionization must be “carefully phrased on the basis of objective fact.” Sounds fair enough, but how does this principle apply in the real world?

Practical Guidance From A Federal Appeals Court.

A recent case involving a manufacturing company gives us some practical guidance about what an employer can say during a union campaign. In this case, the employer learned that a union was seeking to organize employees at one of its manufacturing plants. The employer began a campaign of its own which included a letter to employees and a PowerPoint presentation. The letter cautioned employees that if they unionized, collective bargaining would begin “from scratch.” The PowerPoint said that “relationships suffer” in union shops and that in a unionized plant, the “culture will definitely change” and “flexibility is replaced by inefficiency.”

The union filed an unfair labor practice charge and the NLRB ruled that these statements were unlawfully coercive threats. The federal appeals court, however, disagreed and overturned the NLRB’s decision.

Noting that the phrase “bargain from scratch” has often been litigated, the court found that while the phrase can be coercive, depending on the context, but it isn’t coercive in all cases. For example, if it is meant to convey that the employer will take a regressive stance in bargaining, it could be coercive. But if it simply indicates that the employer intends to be tough at the bargaining table, it is lawful as a “permissible prediction of a hard bargaining posture.”

The court also ruled that predicting culture change, damage to relationships and inefficiency was neither threatening nor coercive. The court found that, in context, these statements fell within the employer’s right to engage in an “uninhibited, robust and wide-open debate in labor disputes.”

The case is Hendrickson USA, LLC v. National Labor Relations Board, Nos. 18-1144 & 18-1315 (6th Cir. Aug. 1, 2019).

Take-Home Messages From The Case.

Crafting communications in a union organizing campaign is challenging and requires an employer to carefully balance its right to self-expression against the risks of going too far in seeking to persuade employees that union representation isn’t in their best interests. This is definitely an area where the well-tuned eyes and ears of experts will help you thread the needle. If you are facing a union organizing campaign, exercise your right to speak out, but be sure to have your communications vetted by experienced labor counsel, like those at Cozen O’Connor.

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About HR Headaches
HR Headaches is a blog for Human Resources professionals, business owners, and in-house counsel to get the latest news, analysis and tips in the area of labor and employment law. Every day there are new court decisions, agency interpretations, and regulations which affect the workplace, making it difficult, if not impossible, for many employers to keep current. HR Headaches is dedicated to providing information in a practical, no-nonsense manner to help employers avoid legal disputes and keep policies up to date.
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