NLRB Again Rules Telling Employees the Truth is an Unfair Labor Practice

Employees at Southern Bakeries filed a decertification petition in 2011 – yes, this case started in 2011. That election was unsuccessful. Another employee waited the required 1-year and filed a second decertification petition in 2012. After that filing, the employee collected signatures of 2/3 of the bargaining unit expressing their interest in decertifying the union. In response (because the law allows) the employer withdrew recognition of the union.

The union, as you can imagine, rejected the withdrawal of recognition claiming that it was unlawful. Per the union’s complaint, employees favoring the union had been subject to unlawful harassment and surveillance – including via surveillance cameras installed in the employee break room – and that management had made threats of plant closure and other reprisals.

In 2015 the case made its way to federal court. There, the judge ordered the bakery to continue bargaining with the union citing evidence that he believed caused the employees to reject the union.

At the end of 2016, Southern Bakeries filed its appeal to the judge’s ruling. In the appeal, Southern Bakeries argues that statements by company representatives that other unionized bakeries had been shut down or gone out of business and that collective bargaining could result in lower pay were not intended as specific threats and were First Amendment-protected criticism of the union (also protected by Section 8(c) of the National Labor Relation Act). It further argued that the alleged harassment and individual threats were either justified disciplinary action or did not happen, and that the break room cameras were to combat theft.

I do not know the ultimate outcome of this case, for it has not yet been decided. But there are two major takeaways for employers: 1) getting rid of a union is tricky, convoluted, and rife with legal hurdles employers must navigate; and 2) even when a company is within its Constitutionally-protected right to tell its employees the truth, it may still be bogged down in a legal quagmire by a union that is unwilling to let go of members who no longer want it.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

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