A second court of appeals has refused to adopt a National Labor Relations Board (NLRB) decision declaring an employee’s speech violated the National Labor Relations Act. See Tecnocap, LLC v. NLRB, 2021 U.S. App. LEXIS 18080 (4th Cir., June 17, 2021). Similarly, in a decision issued earlier this month, the D.C. Circuit vacated an NLRB decision, finding instead it was not unlawful for an employer to make a false statement. See Trinity Servs. Grp. v. NLRB, 2021 U.S. App. LEXIS 16314 (D.C. Cir., June 1, 2021). In Tecnocap, the Fourth Circuit deemed the NLRB’s decision out of bounds because in its view the employer’s speech “communicated accurate and lawful information,” and did not constitute unlawful “direct dealing” with its employees.

“Straightforward” notices that did not solicit employee action were not impermissible “direct dealing”

The decision in Tecnocap arose during a round of contentious negotiations. The employer sought to reorganize the workforce, and the union rejected those efforts. The employer eventually declared an impasse and locked out the workforce. The reorganization involved the transfer of employees from one bargaining unit to another unit–a permissive subject of bargaining–so the impasse and lockout were both illegal, a finding the Court affirmed.

As it prepared to lockout the workforce, the employer posted three announcements on its bulletin board addressing the bargaining, the impasse, the lockout, and the continuation of operations. The Court conducted a review of the bulletin board notices as required by the substantial evidence test, and concluded the notices communicated information in a “straightforward manner,” did not “directly or indirectly solicit […] employee action,” and therefore did not bypass the union.

The Court found it significant the notices explicitly stated the employer would not discuss the negotiations with individual employees, and instead directed them to raise their questions with union officers. A later notice which provided “matter-of-fact descriptions” as answers in response to employee questions was also deemed lawful by the Court. This latter notice also included a disclaimer advising employees that the company “cannot tell or advise as to what you should or should not do.”

Key points for employers

The Tecnocap court’s decision, however, should not be viewed as granting employers carte blanche leeway to communicate with employees during negotiations, an impasse, or lockout. The Court characterized the employer’s statements as “accurate statement[s] of labor law principles,” and noted that whether analyzed individually or collectively, they “did not create the framework to deal directly with unit employees.” Finally, the Court highlighted the fact there was no evidence that the notices or any managers “said –[] or even implied — that the workers would be better off without the Union.”

The Court’s ruling as to the legality of the notices and the employer’s communications has even greater significance given that the employer unlawfully limited the lockout to union members. In addition, non-union employees or employees who resigned from the union contemporaneously with the lockout were “hired” as temporary at-will employees and permitted to work during the lockout. While the Court left open the legality of this tactic when the impasse was lawful, it found this tactic unlawful when this impasse was unlawful.

Overall, the Fourth Circuit’s decision in Tecnocap and the D.C. Circuit’s decision in Trinity Services Group demonstrate the value of careful consideration of communications with employees and the value of seeking appellate review of NLRB decisions. They also teach that the courts will carefully review any attempt by the NLRB to regulate employer speech. For assistance with your labor and employment law needs, contact your Baker McKenzie attorney.