Employers: Don’t throw out your open-door policy just because your employees are unionizing.

That’s the message the National Labor Relations Board shared this week in cautioning companies against telling their employees that they cannot maintain a direct relationship with management if they vote for a union. Under a 1985 case called Tri Cast, Inc., 274 NLRB 377, the Board set a broad standard for what employers were allowed to say about the future of the employment relationship to convince employees not to unionize. But Tuesday, by the release of certain advice memoranda, NLRB General Counsel Jennifer A. Abruzzo confirmed her plan to urge the Board to overturn Tri Cast and limit what she considers coercive and misleading statements by employers during union organizing drives.

The General Counsel’s position is rooted in the National Labor Relations Act’s Section 9(a) proviso, which gives unionized employees the right to present their grievances directly to their employers and to have their grievances adjusted without intervention by their union, so long as the adjustment is not inconsistent with the terms of their collective bargaining agreement and the union agent is given the opportunity to be present at the adjustment. In the General Counsel’s view, making statements that misrepresent an employee’s right to directly access their employer as a result of unionization is coercive, false and misleading, and therefore, violates the Act.

In Tri Cast, the Board approved of the employer’s statements to employees that voting for a union would make their working relationship more onerous and acrimonious. There, the employer said that it would no longer be able to “work on an informal and person-to-person basis” if employees voted for a union, and that the company would have to “run things by the book, with a stranger, and will not be able to handle personal requests as we have been doing.” The Tri Cast Board said that the employer was simply describing the change that occurs in the employer-employee relationship after a union is selected. But the current General Counsel disagrees with the holding and is looking for cases to send to the now Democratically-controlled Board, with the hope that the Board will reverse the case.

By advice memoranda released on Tuesday, the General Counsel has given employers examples of statements that she may find unlawful if made to employees during a union organizing drive[1]:

• “If you sign a union card, you no longer have a voice, you’ve signed that away to some third party.”
• “If you sign a union card, you’ll be giving up your right to speak for and represent yourself.”
• “There will be no direct contact allowed between supervisors, managers and employees.”
• “Employees can no longer come to HR or the plant manager and talk to them about their problems, they would only be allowed to do that through a union representative.”
• “You can’t just come to me [manager] anymore. You have to go to your union rep.”
• “Everything will be filtered through the union.”
• “The No. 1 difference with a unionized environment is that you will not have the pleasure of working with me [management] directly. You will have to go through the union to have a relationship with us.

By contrast, in one of the memoranda released Tuesday, Omni Hotels Management Corp., the NLRB did not take issue with the employer’s statements where the employer told employees:

“Why a union may not be in your best interests? …It means giving up your legal right to deal directly with me and our management team when it comes to your working conditions. Instead, it means giving the union the right to decide for you what’s most important to raise with us…"

Recommending dismissal of the charge against the employer in Omni Hotels, the NLRB reasoned that the employer’s statements did not affirmatively misrepresent employees’ statutory rights. Rather, the statement that employees would be giving up their legal right to deal directly with the management team could be understood to relate to their ability to deal with the employer directly over bargainable subjects – which is accurate as it relates to union representation – rather than employees’ ability to present grievances under Section 9(a) of the Act.

Employers should be cautious about the language they include in their materials and statements when responding to union organizing drives. Employers should also be conscious of the General Counsel’s related agenda to end the right to hold captive audience meetings, which are mandatory meetings to inform employees of the employer’s stance on union organizing.

Miles & Stockbridge’s labor lawyers routinely assist employers with union representation matters, collective bargaining, and other issues affecting unionized workplaces.

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