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NLRB Finds Employer's Single Question To Employee About Unionization Unlawful

A recent decision by the National Labor Relations Board (“NLRB” or the “Board”) illustrates the challenges employers face in communicating with their employees during union organizing campaigns. Under Board holdings in this area, employers long have walked a fine – and occasionally unclear – line between lawful free expression and impermissible coercion.

On June 7, 2018 the NLRB ruled, in Bristol Industrial Corp., that a construction contractor unlawfully interrogated an employee by asking the employee whether he had signed a union authorization card. The Bristol decision confirms that, in certain circumstances, a single question by an employer to an employee about union organizing activity may constitute unlawful interrogation in violation of Section 8(a)(1) of the National Labor Relations Act (the “Act”).

Legal Framework

Section 8(a)(1) of the Act forbids employers to “interfere with, restrain or coerce” employees in the exercise of their rights to engage in union organizing or other protected concerted activity.

Under longstanding Board precedent, during the post-petition period before a union election, an employer’s interrogation of employees as to their union support or affiliation will violate Section 8(a)(1) if the employer’s questions are coercive in light of the surrounding circumstances. In particular, if an employer seeks to force employees to reveal their union sentiments without assurances that no retaliation will result, and without disclosing a valid purpose for the inquiry, the employer will generally be found to have acted in an unlawfully coercive manner.

In determining the lawfulness of employer questions to employees about their union activity, the Board applies a case-by-case analysis of various factors, including (i) whether the employer has a history of hostility toward union activity; (ii) the nature of the information sought; (iii) the identity of the interrogator; (iv) the place and method of the interrogation; (v) the truthfulness of the interrogated employee’s reply; and (vi) whether the interrogated employee is an open and active union supporter.

Did You Sign A Union Card?

The Bristol decision arose from union organizing activity that took place among employees of Bristol Industrial Corporation, a general contractor in Delaware, in early 2015.

In late February 2015, Bristol’s two carpenters signed cards authorizing the Metropolitan Regional Council of Carpenters (the “Union”) to act as their collective bargaining representative. About two weeks later, after learning that the Union had filed a petition to represent the carpenters, Bristol’s owner asked one of the two employees at issue whether he had signed a union authorization card, which the employee denied. On a later occasion, Bristol’s owner told that employee, “I don’t want no f****** union on my job site . . . I don’t want a union here.”

Within three weeks of those latter statements by its owner, Bristol terminated both carpenters. The Union then filed an unfair labor practice charge with the NLRB challenging Bristol’s actions.

Board’s Decision

Following a hearing, a Board administrative law judge (“ALJ”) ruled that Bristol had violated Section 8(a)(3) of the Act (which prohibits discrimination based on union activity) by terminating the carpenters. However, the ALJ concluded that the owner’s question to one of the carpenters about signing a union card was not unlawfully coercive, in part because the questioned employee was one of only two bargaining unit members, both of whom signed authorization cards and were aware that the employer would be notified of the Union’s petition.

Upon review, the Board affirmed the ALJ’s finding of unlawful termination. In addition – and contrary to the ALJ – the Board held that the owner’s question about signing a union authorization card was unlawfully coercive. While the NLRB agreed that there was no evidence of anti-union animus on the employer’s part at the time of the owner’s question, the Board concluded that all of the remaining factors supported a finding of unlawful interrogation.

In particular, the Board cited the following facts:

  • The “interrogator” – who was the sole owner of the business and the employer’s highest-ranking individual – directly asked the employee if he had signed a union authorization card.
  • The questioning occurred at the worksite, “the source of [the interrogator’s] supervisory authority,” which the Board found “added to [the interrogation’s] coercive tendency.”
  • The interrogated employee was not an open union supporter.
  • The employer directed the question to the employee immediately after it had received notice of an election petition. The Board found that this fact, combined with the employee’s untruthful response to the question, “heightened the accusatory tone of the questioning and further demonstrate[d] the coercive nature of the interrogation.”

Finally, the Board weighed the employer’s later anti-union statements and discriminatory discharges as further evidence that the question was unlawfully coercive.

Recommendations For Employers

The Bristol decision serves as an important reminder to employers to be cautious in communicating with employees about unionization issues during the post-petition, pre-election period. Even a single inquiry about union activities may be deemed unlawfully coercive, particularly if the question seeks to compel an employee to disclose his or her sentiments about unionization. Since the Board can (and often does) order an election to be reheld if it finds that an employer’s coercive questioning of employees may have contributed to their voting against unionization, particularly when combined with other unfair labor practices, the consequences of such employer inquiries can be significant.

To minimize these hazards, employers should consider conducting management training at the first sign of organizing activity, to ensure supervisors know how to lawfully communicate with employees about the realities of working in a union-represented workplace. Involving experienced labor counsel in such training and the evaluation of other employer campaign communications can also help an employer avoid common missteps during union organizing.

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If you have questions regarding the Bristol decision or would like assistance in evaluating the risks of potential employee communications in the union organizing context, please contact one of our experienced labor attorneys.