Company’s Truthful Statements Deemed Unlawful during Union Organizing Campaign

The Seventh Circuit Court of Appeals recently upheld a National Labor Relations Board decision that an Illinois auto dealership illegally discouraged workers from supporting a union. The dealership’s management met with employees to discuss a union organizing effort. The managers (truthfully) stated that bargaining with the union would “start from scratch” and pointed out that its Orlando dealership had not had any bargaining negotiations despite those workers electing a union nearly three years earlier. The managers (truthfully) advised that pay raises were “absolutely possible” in the event that employees rejected the union and responded that they did not know if some employees would be demoted under union rules.

The Board determined that the managers’ truthful statements all had a tendency to discourage employees from organizing and were therefore unlawful. This case is especially concerning because there were no blatant violations here. Many of the managers’ statements that the Board found violated the Act were spoken in hypotheticals, such as when the managers responded to inquiries about future pay increases. Apparently, the Board is now telling employers that they cannot tell the truth to their employees.

Companies need to walk a fine line between being cautious about what they tell employees during union organizing campaigns and providing as much information as permissible to support the company’s campaign against the union. All managers must be trained on what they cannot say or do. Given the new election rules implemented in April of this year, union campaigns are shorter, making it even more important that companies train their managers before union organizing begins.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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