NLRB Division of Advice Decides Common Union Avoidance Statements are Lawful

A union recently tried to organize a bakery and café operator’s stores at Philadelphia International Airport. The employer promptly responded to the union organizing effort through employee meetings and a letter from the company’s CEO.

In his letter, the CEO asked whether employees “really want a union to be your spokesperson instead of having a direct line to any level of management, right up to me.” The CEO also said, “Unions only increase the divide between management and employees” and urged employees not to vote for union representation.

The NLRB has previously ruled that employers can lawfully state that management’s relationship with employees would change as a consequence of unionization. The Board has applied this principle broadly, although the Board has recently questioned this case law. In a 2012 case, former Member Sharon Block stated that previous case law is at odds with NLRB decisions about employee predictions concerning the consequences of unionization and stated that she supports re-examining this law in a future case.

That case has not yet arrived. In an NLRB Division of Advice memorandum, the NLRB Associate General Counsel concluded that the CEO’s statements were lawful. The Division of Advice explained that the CEO’s statements “would not necessarily be read to imply that employees would lose all direct access to the Employer as a result of union representation.”

A company’s speech is restricted when a union campaign is underway. But as this case shows, companies have some leeway to legally respond to union campaigns and fight to keep their businesses union-free. Companies are always allowed to tell their employees the truth (conversely, the law permits unions to lie), and telling workers that voting for a union may erode a direct line to management is a fact.

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