Employers probably are aware of the “quickie” election rules implemented earlier this year by the National Labor Relations Board (“the Board”), but they may not have considered all of the rules’ consequences. With as little as 15 to 20 days to respond to an organizing drive, employers must be prepared to educate employees about the risks and consequences of union representation on very short notice. While many employers have prepared as we described here, some still may not be ready to answer questions from workers and explain the consequences of unionizing the workplace. Responding to workers’ questions about a union without being properly prepared can make a mess of things, even if employers speak the truth.

A recent case from the Sixth Circuit Court of Appeals upheld a Board decision provides a good reminder that managers must be extremely careful even when speaking the truth to workers during an organizing campaign.

Be Careful What You Say

When a car dealership in Illinois learned that some employees were stirring up interest in unionizing, the plant’s general manager met with workers to discuss unions and answer their questions. The manager answered their questions honestly, but his answers still violated labor law, according to the Board and the Sixth Circuit.

For instance, when describing the nature of potential negotiations if the workers approved a union, the manager stated that negotiations are “a wide open game of uncertainty” in which “nothing is guaranteed even if you win the election.” Indeed, the manager accurately recalled that workers in a sister plant had elected a union almost three years prior but still had not had one contract negotiation. And in responding to a question about whether wages would be less if the workers unionized, the manager stated, “It’s possible. . . . When I say that we sit down and we start [negotiating] from scratch, we start from scratch. We don’t start with what you guys are making today. Everybody goes to zero.”

Even though the manager thought he was answering the workers’ questions with accurate information, he didn’t get it quite right. As a matter of law, when employees organize, the “starting place” for negotiation is the “status quo.” Telling employees they were going to “start from scratch” falsely stated the dire outcome of union representation. It’s true that an employer’s duty to bargain in good faith does not include a duty to agree to any proposal, but the Board found the manager’s statements were nonetheless unlawful because they could reasonably be interpreted as an implied threat that unionizing would be futile.

Similarly, employers also must beware of implied promises. For instance, the manager told his workers that updating current pay was “absolutely possible” without a union and that the plant wanted “a chance to address [your concerns] before you pay somebody else to address them.” This statement was unlawful because it impliedly promised workers a raise if they rejected the union.

Lesson Learned: Exercise Caution

This decision is a good reminder that employers must be extremely careful about what they tell employees during a union organizing campaign. Caution may be difficult with the tight timelines of the new quickie rules breathing down employers’ necks, but saying the wrong thing during organizing can have dire consequences.

Say the Right Things

  1. “You currently enjoy good pay, benefits, and job security without a union.”
  2. “We will bargain with the union but we have no duty to agree to anything.”
  3. “The union cannot guarantee you better wages, benefits, or working conditions.”
  4. “You have a right to refuse to speak with union representatives or to sign an authorization card. And if you’ve already signed a card, you can still vote against the union.”
  5. “If there is an economic strike, we may permanently replace all striking workers.”

Conclusion: Be Prepared

The Sixth Circuit cautioned that the underlying message of labor law is that employers need “to take care in the rhetoric [they use] when discussing union issues with [their] workers.” Prudent employers will exercise that care now and train supervisors on the appropriate way to communicate with workers during an organizing campaign. Those that don’t may find that the truth doesn’t always set you free.