One of the many services we provide to our clients is training on how to respond effectively to union organizing activity. In short, we provide the do’s and don’ts of how to respond lawfully to a union’s efforts to organize an employer’s workforce. During these trainings, we often stress the fine line dividing lawful and unlawful statements and conduct.
Recently, in Kumho Tires Georgia, the National Labor Relations Board (the Board) issued a decision addressing many of the practices on which we advise clients. The case is instructive because it demonstrates how an employer may run afoul of the National Labor Relations Act (NLRA) in responding to union organizing activity.
When faced with union organizing activity, an employer would be well served to remember the acronym setting forth conduct the Board will find unlawful: TIPS, which stands for “Threats, Interrogation, Promises, and Surveillance.” The employer in Kumho Tires seemingly failed to remember these TIPS and committed numerous violations of the NLRA.
Threats: Threatening employees because of their support of a union is unlawful. An employer may, however, lawfully tell its employees that unionization could lead to job loss if framed as a fact-based prediction of consequences over which it has no control. Moreover, an employer may lawfully tell employees of the “risks” and “costs” associated with unionization; for example, the possibility of an interruption in Company operations caused by circumstances out of its control (a strike) or the cost of union dues. In this case, however, the employer made numerous unlawful threats:
- The company’s president conveyed that all employees’ jobs were in jeopardy if the employees were to select the union as their bargaining representative, also stating “this company will not survive if the union comes in.” Here, the Board found that the statements “drew a straight line from the employees’ selection of the union as their collective bargaining representative to the company’s demise. The president failed to cite any objective facts that would tend to show that the company may have to go out of business for reasons beyond its control if employees elected the union.”
- A team lead told an employee that the company would lose its two biggest customers if the union was voted in because the customers do not buy from “union facilities. The team lead failed to provide an objective factual basis for his prediction, and the Board found that employees were unlawfully threatened that unionization would result in loss of work.
- A team lead told an employee to be careful how he voted because, if the union was voted in, the company may take its operations to South Korea. The Board reasoned that the statements conveyed the message that the company might decide on its own initiative to close the facility and transfer its operations simply because employees voted for the union. The Board found this to be a threat of reprisal reasonably intended to interfere with the employees’ right to freely select or reject union representation.
Interrogations: Questions aimed at discovering employees’ union sentiments support a finding that an employer committed an unlawful interrogation. Circumstantial factors relevant to the analysis include the background against which the questioning occurred, the nature of the information sought, the identity of the questioner, the place and method of interrogation, the truthfulness of the employee’s reply, and whether the employee involved was an open and active union supporter. As detailed below, unlawful interrogations are not confined to direct questions concerning whether an employee supports a union.
- A team lead asked one employee how they planned to vote at the upcoming election. The same team lead asked another employee, shortly before the election, how they felt about the union. These are classic examples of unlawful interrogation. The Board reasoned that this type of repeated questioning was aimed at discovering employees’ union sentiments and constituted unlawful interrogation
- A labor consultant for the company asked an employee why the company needed a Union. The Board affirmed the ALJ’s finding that the question was unlawfully coercive
- In a supervisor’s office, a team lead questioned an employee about how they felt about the union. The Board found that the location of the question added to its coerciveness.
- A team lead asked an employee what they thought about Kumho “staying a non-union facility.” The employee was not an open and active supporter or opponent of the union. The Board found that the interrogation was coercive because the question was designed to elicit information about the employee’s previously undisclosed sentiments
- A team lead asked an employee he supervised if the employee wanted a “Vote No” hat. The employee had not previously disclosed his union sentiments, and the inquiry occurred shortly before the election. By putting the employee in the position of having to openly accept or reject the hat, the company forced the employee to signal his likely vote to management. The Board concluded this interrogation would reasonably tend to interfere with, restrain, and coerce employees in the exercise of their rights under the NLRA.
Surveillance: In addition to surveilling employees’ protected activity, an employer violates the NLRA when it creates an impression in employees that their union or other protected activities is under surveillance – even if the employer is not engaged in any actual surveillance. Here, a team lead told an employee that the Company “had people watching” and knew everything that was being posted on a closed Facebook page for union supporters. An employer can avoid a finding that it unlawfully created an impression of surveillance by advising employees of the source of its information.
This case serves as a useful refresher for employers seeking to learn what not to do in the face of union organizing activity. In this case, the employer won a close election against the union. But its unfair labor practices led the ALJ to recommend that the election result be set aside and a new election ordered. Were it not for the union’s withdrawal of its petition, the Board may have ordered a rerun election.
So our tip to you is to remember TIPS.
(And thanks to our law clerk, Evan Conder, for his work on this blog post!)