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.

OK to Fire HR Generalist for Threatening to Unionize Workers

A company was growing and wanted to hire someone who could ensure that it remained compliant with workplace laws, so it hired an HR Generalist. After auditing personnel files and payroll, the HR Generalist drafted a letter that said, among other things:

  • He had major concerns about the workplace;
  • One employee was racist;
  • One employee shouldn’t play uncensored music;
  • The company’s paid time off policy was sub-par because employees were making less than the average demographic salary;
  • He and other employees were misclassified as exempt under the Fair Labor Standards Act; and
  • One manager was age- and sex-biased

The HR Generalist concluded by saying he has and “will continue to give serious thought in regards to contacting the NLRB and attempting to organize and eventually form a union.” The HR Generalist did not discuss any of his concerns with other employees. He was fired after his supervisor read the letter. He filed a charge with the NLRB, and, of course, the NLRB issued a Complaint against the Employer.

The NLRB believed that terminating the HR Generalist was a preemptive strike to prevent him from engaging in statutorily protected conduct. Thankfully, the Administrative Law Judge rejected this theory since the HR Generalist never discussed any of the concerns raised in his letter with other employees. Per the ALJ, the HR Generalist “was interested only in protecting his own job by threatening to initiate a variety of legal actions, and that he had no interest in promoting, supporting, or assisting other employees in seeking to address any of those issues.

On appeal, a unanimous NLRB upheld the ALJ’s decision. Notably, the NLRB said the HR Generalist and the Company shared an expectation that he would bring non-compliance issues to the company and together they could find solutions to the problems. The HR Generalist betrayed the Company by pursuing a course of action inconsistent with the purpose for which he was hired.

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. 

Employer Punished for Truthful Statements During Union Organizing Effort

Anyone who has been through a union organizing campaign can relate to the following. Until now, employers could tell the truth to their employees. Employers could tell employees that a union could not guarantee a wage increase, that everything is negotiable, that unions cost money, that unions preclude an employee from working directly with management, etc. Apparently, these statements are now unlawful. 

A company recently implied that workers’ wages and benefits would start from “ground zero” simply by choosing union representation and not as a possible outcome of good faith bargaining. Management’s suggestions of a more onerous or difficult work environment after voting to join the union also constituted an unfair threat under the National Labor Relations Act. According to the Judge, “I find that employees would reasonably believe, based on [the Company’s] statements, that with the union, the would lose many of their benefits, experience decreased pay, lose all flexibility they might have in navigating day to day work conditions, and forfeit any flexibility in terms and conditions of employment they might enjoy.

The Company committed additional unfair labor practice by: 1) holding a meeting with employees to urge them not to unionize, 2) sending a letter to employees encouraging them to forego unionization and telling them that they would lose the ability to represent themselves if they voted in favor of the union, and 3) telling employees that the union would cost money and could potentially put their paychecks, benefits, and work flexibility at risk.

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 maustin@ralaw.com.

Suspension Threat to Union Rep Unlawful

Weingarten rights permit employees to have a union representative attend an investigative interview the employee reasonably believes may result in discipline. The union representative can assist the interviewee. But how much assistance can be rendered was recently litigated when a manufacturer threatened a union steward with suspension for using notes during an investigatory meeting.

The union steward met with the employee before the interview and took notes. While the company questioned the employee, the steward showed his notes to the employee who began reading the notes aloud. This prompted the supervisor to instruct the steward to close the book. The steward refused, and the supervisor threatened him with a suspension. At hearing, the administrative law judge (ALJ) explained that the company could insist on hearing the employee’s account of what happened and found that the company disciplined the steward for giving the employee a prepared response, not for taking notes during the interview. The Board disagreed and reversed the ALJ.

An employee’s Weingarten rights extend beyond simply having a union representative present during an interview. Representatives are, in fact, allowed to represent the person being interviewed.

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 maustin@ralaw.com.