I don’t disagree with the law: an employer’s initial success in opposing a union organizing effort is unlawful if there were threats of job loss by management shortly before the vote. I do, however, disagree with what the NLRB determined were unlawful statements by the Company.
Here, the employees voted 73-118 to remain union-free. This is a pretty large margin as far as union representation elections go. But, that margin will be tested in another representation election based solely on the comments made by a safety manager.
The safety manager told workers that he would enforce tardiness and other rules more strictly if they opted for union representation. This comment was made at a mandatory meeting attended by employees who would vote in the election. The administrative law judge and the NLRB found that this comment violated the National Labor Relations Act. The penalty for this isolated comment: a re-do election.
Not surprisingly, I would not find the safety manager’s comment unlawful. A truthful comment cannot be an unlawful comment. The comment that tardiness rules would be more strictly enforced is a truthful comment. Without a union, managers have tremendous discretion in how they apply work rules. This manager chose to be lax on tardiness rules. With a union, managers must strictly follow the clauses of a collective bargaining agreement; they cannot be lax when following tardiness or other rules. For the safety manager to say he would follow the tardiness rules of a collective bargaining agreement more strictly than non-union work rules is a truthful statement and should not have resulted in a subsequent election.
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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.