Campaign Rhetoric Still a Divisive Issue for Labor Board(1)

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Lawrence E. Dubé

Labor board members have very different views about collective bargaining and the rights of employers to campaign against unionization, an NLRB decision against a Kentucky manufacturer shows.

The board will likely shift its position on employer campaign rhetoric once the expected confirmation of President Donald Trump’s nominee John F. Ring (R) gives the board a Republican majority. If the new majority allows employers more leeway to argue vigorously against union representation, the change could have significant consequences. The National Labor Relations Board supervised 1,579 secret ballot elections in fiscal year 2017, and many were close contests that might have ended differently if the board’s rules on election rhetoric were different.

Alleging that management has unlawfully threatened employees can raise the stakes during an organizing campaign. If the NLRB orders an employer to disavow a threat, the employer’s credibility in the eyes of employees may be undermined. In other cases, an employer’s illegal threat before a vote on union representation can invalidate the election if the union is defeated at the ballot box.

In the latest case decided by the board on this issue, Democrats Mark Gaston Pearce and Lauren McFerran found Hendrickson USA LLC illegally used a PowerPoint presentation to coerce employees during a union organizing campaign. Warning employees that voting for the United Steelworkers would change the company’s culture and “easy-going atmosphere” was a clear and illegal threat, the board members said.

But Member William J. Emanuel (R) dissented. When employees vote for union representation, some conditions inevitably change in the workplace, he said. Hendrickson only commented on a “fact of industrial life” and didn’t didn’t violate the National Labor Relations Act, Emanuel found.

Divided Views of Company’s Campaign Pitch

Hendrickson manufactures vehicle suspension and axle systems at its Albany, Ky., plant.

The Steelworkers in 2015 launched an organizing drive that never reached an election, but the board found the company violated the National Labor Relations Act, which forbids employers from interfering with employees’ union activity.

The board has often ruled that companies unlawfully threatened employees about the consequences of unionizing. The board’s website alerts employers, unions, and employees that it’s unlawful for an employer to threaten employees “with adverse consequences, such as closing the workplace, loss of benefits, or more onerous working conditions, if they support a union, engage in union activity, or select a union to represent them.”

On the other hand, Section 8(c) of the NLRA gives employers the right to express their views on unions and unionization as long as their communications to employees contain “no threat of reprisal or force or promise of benefit.”

Distinguishing illegal threats from lawful predictions is often difficult, but the U.S. Supreme Court held in 1969 that an employer’s negative predictions about the effects of unionizing can be considered coercive and illegal if they aren’t “carefully phrased” on the basis of objective facts.

In the Hendrickson case, the NLRB majority said, employees would reasonably have understood the company’s PowerPoint presentation to threaten that if they supported the union, the company “would retaliate by changing the easy-going culture and by adopting a less flexible managerial approach in its workplace relationships.”

However, Emanuel said in defending the employer’s message to its workers that it’s true in a newly unionized workplace the employer can’t change employment terms and conditions without giving a union a chance to bargain and can’t bypass the union to deal directly with employees. Those facts and the possibility of labor-management conflicts “cause some measure of inefficiency, reduced flexibility, an arguable adverse effect on relationships, and a change in workplace culture,” Emanuel said. The dissenting board member found the company made a lawful prediction rather than an illegal threat.

Counsel for Hendrickson USA didn’t respond to a request for comment on the decision.

NLRB attorneys represented the board’s general counsel. Kastner Westman & Wilkins LLC in Akron, Ohio, represented Hendrickson USA LLC.

The case is Hendrickson USA, LLC , 2018 BL 25532, 366 N.L.R.B. No. 7, 1/25/18 .

To contact the reporter on this story: Lawrence E. Dubé in Washington, D.C. at ldube@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law