Did I Say Something Wrong? NLRB Issues New Ruling on Employer Comments During Union Campaign

By Nelson D. Cary and Ashley M. Manfull

Recently, the NLRB, in a three-member panel of Members Hayes (R), Flynn (R) and Block (D), ruled on various statements the employer made during a union organizing drive about the changes to the employer-employee relationship should employees vote for the union.  

In Dish Network Corp., 358 N.L.R.B. No. 29 (April 11, 2012), the NLRB held that the employer did not violate the NLRA by informing its employees:  “If a workplace is Union, you have to go to your Steward with your complaints, and he decides whether to bring them to the Company’s attention, not you. He controls your fate, not you.” Relying on Tri-Cast, Inc., 274 N.L.R.B. 377 (1985), the NLRB held that an employer does not violate the NLRA by informing employees that unionization will bring about a change in the manner in which the employer and employee deal with each other. The NLRB determined that the employer’s statement was not a threat, but rather correctly pointed out to employees that the union decides which grievances it wishes to pursue. 

However, Member Block wrote a concurring opinion expressing her view that the Tri-Cast rule should be re-examined in a future case. That decision, she reasoned, “has come to stand for the proposition that almost any employer statement involving the impact of unionization on employees’ ability to individually pursue grievances is permissible.” Member Block would like the NLRB to clarify that employer statements that implicitly misstate the law are not permitted, such as in this case where the employer’s statement implies that employees will lose the right to bring complaints to management individually.

While condoning the employer’s statement regarding future grievances, the NLRB determined that other statements made by the employer during the union campaign did violate the NLRA, including:

• Statements threatening employees that if the union is elected, there would be more stringent enforcement of company rules on dress code and attendance;
• Informing employees that they would be paid differently than employees at other locations;
• Giving employees the impression that election of the union would be futile because the Company would bargain to impasse; and
• Informing employees that they would remain on the same pay plan because of their union organizing activities.

The opinion is important for the labor professional for at least three reasons:

• It is an important reminder that the employer’s speech during a union campaign is highly regulated;
• It underscores the importance of training for supervisors and managers confronting a union organizing drive to ensure that they lawfully convey the employer’s message about unions; and
• It suggests that yet more change to established NLRB precedent could be forthcoming in a future case presenting the same facts.