NLRB: It’s Not What Management Says, It’s What Employees Hear

A union sought to organize workers of a construction company. In response, the owner of the company told employees that electing a union would financially “crush” the company. This statement was unlawful because the owner offered no objective evidence that a union win would make it impossible for the company to survive.

This case involves a pretty straight forward maxim of labor law but one that is routinely violated by unsuspecting business owners and management. Pursuant to Gissel Packing Co. (1969), an employer may predict the consequences of unionization as long as the prediction is “carefully phrased on the basis of objective fact” to convey the employer’s belief concerning “demonstrable probable consequence” that are beyond the employer’s control. Here, the business owner did not provide any substantive support for his predictions. Rather, he merely assumed that bargaining with the union would lead to higher wages that he could not afford.

Please let this be another reminder that labor laws are screwy (legal term of art). Even the best, well-intentioned comments and actions can have catastrophic consequences. Here, the employer was forced to accept the union at his workplace. Only time will tell if his “crushing” comment proves to be false or prophetic.

Matt Austin 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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

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