Predicting Union Vote Would ‘Crush’ Company Illegal, NLRB Says

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

Telling an employee that electing a union would financially “crush” a construction company was an unlawful threat to close the business, the National Labor Relations Board decided ( Neises Constr. Corp. , 2017 BL 318149, 365 N.L.R.B. No. 129, 9/11/17 ).

An administrative law judge found Neises Construction Corp. never specifically threatened to close its Indiana concrete business, but Labor Board Chairman Philip A. Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D) said employees got the message.

Companies that are “crushed” can’t pay wages and have to lay off employees, the board said Sept. 11, finding Neises offered no objective evidence that a Carpenters Union win in an upcoming election would make it impossible for the company to survive.

The case shows the lasting effect of a 1969 U.S. Supreme Court ruling that requires employers to be painstaking in separating legitimate predictions about unionization from unlawful implied threats.

Remark Was Unlawful Threat

The Indiana/Kentucky/Ohio Regional Council of Carpenters filed unfair labor practice charges and objections to a 2014 election loss at the residential concrete company.

The board agreed with an ALJ that the company unlawfully threatened employees with new job requirements, tightened the company’s attendance policy, and fired two employees.

However, the board also said the ALJ erred in dismissing the allegation that co-owner Brian Neises illegally told an employee it would “crush” the company if employees voted for a union.

The board cited the Supreme Court’s decision in NLRB v. Gissel Packing Co. that 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 consequences” that are beyond the employer’s control.

“Neises did not provide any substantive support for his predictions,” the board said. The company merely assumed that bargaining with the union would lead to higher wages that Neises couldn’t afford, and the company’s statement lacked the “objective factual basis” required by Gissel Packing, the board said. As a result, the company violated the National Labor Relations Act by making “unlawful threats of job loss and closure of the Company.”

The NLRB ordered the employer to reinstate the two fired employees with back pay and post a notice of employee rights. If a final ballot count shows the union lost the 2014 election, the board said, the NLRB regional office should conduct a new representation election.

Attorneys for the employer and union didn’t immediately respond to requests for comment on the NLRB decision.

NLRB attorney Renee D. McKinney represented the board’s general counsel. Arthur C. Johnson of Johnson, Stracci & Ivancevich LLP in Merrillville, Ind., represented Neises Construction Corp. Paul T. Berkowitz and Suzanne C. Dyer of Paul Berkowitz & Associates in Chicago represented the Carpenters.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law