What Not To Talk About When You Talk About Unions

The National Labor Relations Board “will soon be taking a tougher stance against employers who misrepresent how things could change if employees voted to unionize,” says a post from law firm Fisher Phillips. They base this conclusion largely on a series of Advice Memoranda that Jennifer Abruzzo, the General Counsel of the NLRB, “stealthily released” to the Board in January, with the message that board members should be on the lookout for cases that would overrule a seminal 1985 decision, Tri Cast Inc. That decision is said to permit employers to tell workers that if they vote to unionize, it would make the working relationship more onerous and acrimonious. The GC clearly would like to see that decision overturned.

Looking to the wording of the GC memos, the writers come up with 7 Things Employers Couldn’t Say About Unions if NLRB’s General Counsel Has Her Way. The wording of these statements is not subtle, and it’s easy to see why a labor-oriented NLRB general counsel would flag them, likely contending that in addition to being coercive, they simply are not true. E.g., “There would be no direct contact allowed between supervisors, managers and employees,” and “You can’t just come to me as your manager anymore. You have to go to your union rep.”

This post also attempts to define what you can say, and that gets more complicated. The writers give an example which in their view would not get flagged by the NLRB, and the difference between it and a similar forboten version that they also provide is subtle: The offending version speculates about the effects of unionization, while the acceptable version makes “plain statements about a union’s role in representing employees under the law.” -Today’s General Counsel/DR