Court of Appeals “Baffled” By NLRB’s Finding Of Unlawful Union Remark by Employer’s President

By Nelson Cary and Ashley Manfull

Recently, the District of Columbia Circuit Court of Appeals reigned in a union-friendly NLRB decision involving comments made during a union organizing drive. In Flagstaff Medical Center, Inc., the NLRB held, among other things, that Flagstaff’s President violated the NLRA during a meeting with food services employees during a union campaign. 

At the outset of the meeting, the President indicated he was there to learn about the employees’ issues, concerns, and problems. After discussing various issues raised by the employees, the President made a comment to the effect that if there was a union, “I would not be negotiating with the union,” or “you won’t be negotiating with me.” The NLRB found that the remark was unlawful because it could have been reasonably construed as indicating that the Company would not bargain with the Union or that negotiations with the Union would be futile.

Rejecting the NLRB’s finding, the Court expressed that it was “baffled by the Board’s interpretation of [the President’s] first-person-singular statement about negotiations as a comment about Flagstaff’s willingness to negotiate—rather than as a statement about his own attendance at whatever meetings occur.” The Court found that the NLRB made an interpretive leap that could not be justified based on the facts of the case. 

In support of its decision, the Court cited NLRB precedent allowing employers to explain the advantages and disadvantages of collective bargaining to their employees in an effort to convince them that they would be better off without a union, provided such statements do not threaten or promise certain benefits to the employees. The Court found that this was the most plausible basis for the President’s comment to the employees, as the purpose of the meeting was to show the value in addressing employee concerns directly with the employees, instead of working through a union representative. Therefore, the Court found that there was insufficient evidence for a reasonable mind to accept the conclusion that the Flagstaff employees had been coerced or threatened with respect to their right to unionize. 

For the labor professional, the Court’s decision is significant for at least two reasons:

• The NLRB’s view on how employees will interpret an employer’s remarks, which can oftentimes make employers scratch their heads in puzzlement, is not absolute, and may be reversed on appeal.
• Careful legal review and consideration of supervisors’ and managers’ remarks, particularly senior level leaders in any organization, is very important during union organizing activity.