Employers Not Allowed to Tell Employees they Can Request Unions Return their Authorization Cards

An Ohio food processing company cannot ask its employees to revoke cards they signed authorizing a union to represent them.

That Company federal labor law by circulating a flyer and briefing employees on how they could revoke or withdraw authorizations they had already signed for United Food and Commercial Workers Union Local 75, a divided National Labor Relations Board (whose majority comprised of Obama Democrat appointees) ruled July 19.

The NLRB decision illustrates an important limit on employers: they may not be allowed to urge employees to revoke cards if they’ve already intimidated workers in violation of the National Labor Relations Act.  The Board said the Company violated the National Labor Relations Act by delivering its messages in “an atmosphere where employees would tend to feel peril if they refrained from revoking their support for the union.”

Dissenting Republican board member Emanuel said the Company committed serious campaign violations including interrogations, surveillance, and retaliatory discipline, but he found they were not “widespread or egregious” enough to justify ordering the company to refrain from soliciting employees to withdraw union authorizations.

Supervisors distributed a flyer titled “How to Withdraw Your Signed Union Authorization Card,” with an attached form employees could complete and return to the Union. The flyer told employees they could deliver or mail the form to Local 75 to revoke their authorizations for the Union to act as their bargaining agent, or they could simply ask a Union representative to return an authorization card.  This is common fodder seen in all union organizing campaigns that has been lawful for decades, until now, apparently.

The ALJ said the language of the flyer was lawful, and Emanuel said the Ohio company’s unfair labor practices were not nearly as serious as those in the board’s 2001 decision in Mohawk Industries that a company violated the Act by soliciting employees to revoke union authorizations during a campaign marked by serious company violations.

However, Democrat Board Members Pearce and McFerran said Mohawk did not set “a floor as to the types of violations needed to create a perilous atmosphere.” In this case, the Board Members said, the company unlawfully confiscated some union cards and disciplined several employees for distributing cards to co-workers. Those violations “went to the heart of the card signing process” and would have concerned employees about the consequences of failing to revoke their authorization cards.

So Employers are now left with the following conundrum: When dealing with a union organizing drive, it is lawful to factually tell employees how they can revoke their signed authorization card, but only if the Employer has not previously engaged in too egregious of unfair labor practices.

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.