Court shows do’s, don’ts, dares of union-organizing resistance

A legal petition involving the United Steel Workers (USW), National Labor Relations Board and an equipment manufacturer provides employers an instructive take on permissible language and tactics for confronting union representation campaigns. A U.S. Court of Appeals opinion honored an employer’s challenge of NLRB decisions surrounding a 2015 USW organizing campaign. Union-friendly decisions went hand in hand with National Labor Relations Act (NLRA) interpretations the Board made while answering to President Barack Obama.

Issued last month, the opinion appears to close a case where the manufacturer countered USW overtures to the workforce with hard truths. Union representation and collective bargaining meant that workplace culture would change and relationships suffer, management affirmed, while employees would start “from scratch” on a compensation package—no guarantee of increases above existing pay and benefits—and give up their right to speak for themselves. Unionizing would spell “flexibility replaced by inefficiency.”

The NLRB had found that the company’s statements constituted unfair labor practices because they coerced employees in the exercise of their rights under the NLRA. A reasonable employee would interpret the statements as threats of retaliation if they selected the Union as their representative, contended Board Members, who ordered the manufacturer to post workplace notices of intent of full NLRA compliance.

The three-judge Appellate Court panel rejected the finding of coercion and determined that management’s statement on compensation levels beginning or starting “from scratch” in the event of union representation did “not evince any intent on the part of company officials to adopt a regressive bargaining posture in response to unionization.”

The panel reviewed NLRA language addressing employer actions in question, including a 1947 section that manifests “a congressional intent to encourage free debate on issues dividing labor and management,” and that policy judgment “favor[s] uninhibited, robust, and wide-open debate in labor disputes.” In a labor dispute, the court suggests, employer and employees may “express themselves on the merits of the dispute in order to influence its outcome.”

The court noted NLRB precedent such that use of “bargaining from scratch” is not a per se NLRA violation, although the phrase carries a “seed of a threat that the employer will become punitively intransigent in the event the union wins the election.” Judges offered context, noting the phrase is a) “lawful when the company makes clear that it is warning employees about the natural give and take of the bargaining process, in order to counter the idea that unionization will automatically increase compensation,” and b) “coercive when it indicates that the employer will retaliate against employees by adopting a ‘regressive bargaining posture’ during negotiations or by ‘unilaterally discontinu[ing] existing benefits’ prior to negotiations’ so employees receive only what the union can induce the company to restore.”

Court precedent, the panel observed, holds that it is not unlawful for an employer to adopt a “hard bargaining posture if a union is elected” and communicating an intent to start from “zero” or “scratch” is a “permissible prediction of a hard bargaining posture.” Like many administrative laws, the NLRA is loaded with nuances and conditions where context matters much. The Appellate Court offers a good refresher on the do’s, don’ts and dares for employers enlightening team members who think unionizing is a path to better wages and job satisfaction.