A recent decision from the NLRB is a good reminder that employer statements during union organizing activity have potentially wide-ranging effects.  This latest case involves Purple Communications, a provider of sign language interpreters who facilitate real-time, two-way phone communication between hearing-impaired and hearing individuals. 

The union filed objections after suffering narrow election defeats at two of Purple’s sixteen sites.  The NLRB ruled that Purple had engaged in objectionable conduct and set aside both elections.  As a result, the union got a second chance to convince employees to vote in favor of union representation.

The NLRB first ruled that Purple’s policy prohibiting employees from “causing, creating, or participating in a disruption of any kind during working hours on Company property” was overbroad on its face.  Why?  Because employees could reasonably interpret “disruptions of any kind” to include participation in strikes, solicitation, and other protected union organizing activity.  The phrase “during working hours” was also problematic, since “working hours” could include periods that employees are not expected to be working, such as breaks or meals.  Labor law has long-recognized the right of employees to engage in solicitation of other employees during breaks and meal periods.  

The NLRB next found certain statements by the CEO during speeches to employees were coercive and threatening.  The NLRB has always required that a union election must be conducted in “laboratory conditions,” so that employees may make a free, uninhibited choice about union representation.  Campaign statements—by both unions and company officials alike—can alter these conditions.

In his speeches, the CEO asked the workers for twelve more months to address the issues that led them to turn to unionization.  He specifically addressed a central campaign issue involving increased productivity standards for interpreters that had caused a significant increase in workload with no corresponding pay increase.  He admitted that Purple may have gone too far, that the company needed to “recalibrate” the standards, and that the company was “looking at the matter.”

The NLRB found that this was not a “generalized expression” of the desire for more time, which is usually acceptable.  Rather, the CEO “directly linked” implied promises of improvements to the performance standards increase.  The CEO’s statements indicated that action on a key employee concern was actively under consideration and was even likely.  This implicit promise interfered with the employee’s freedom of choice, and therefore tainted the election.

During the speeches, the CEO also commented on the amount of money the company had spent campaigning against the union.  He noted that it could have gone towards other things, including “spot bonuses” to interpreters.  Citing a number of prior decisions, the NLRB held that these statements implied that the union campaign had cost the employees their bonuses and would continue to do so.  This threat interfered with the employees’ freedom of choice, and thus also tainted the elections.

In concluding its opinion, the NLRB explained why the election results would be set aside.  Particularly significant is the NLRB’s decision that the no-disruptions rule by itself was enough to set aside the elections.  Regarding the CEO’s speeches, the NLRB held that “the implied promises and threats in those speeches were heard by enough employees to affect the outcome” of the vote.

For labor professionals, there are at least four takeaways, some fairly simple, but others more concerning: 

  • What the employer says during a union organizing campaign can and will be used against it in subsequent legal proceedings, particularly if the union loses.  Thus, think carefully about what is said and obtain legal advice on the risks to the business of various messages.
  • If you thought that the employee handbook policy cases (e.g., here and here) were just about words, think again.  This case demonstrates that if an employer maintains an unlawful handbook policy while a union organizing campaign is ongoing, it alone can justify giving the union a “second bite at the apple” if the employer wins.
  • The NLRB severed an allegation about the employer’s email policy, which prohibited non-business use of the employer’s computer, internet, and email systems.  The rule also specifically prohibited use of such resources for “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company.”  The NLRB was already considering rules of this nature in a separate case.  Employers should expect a ruling, likely unfriendly, on this issue in the next few months.
  • The union urged the NLRB to hold that “captive audience” speeches—mandatory gatherings of employees to listen to the employer’s views on unions—were unlawful.  In a footnote, the NLRB refused to consider this argument, but apparently only because the record was “equivocal” as to whether meetings were mandatory.  This open invitation to changing NLRB precedent that has governed for many years is not likely to go unaccepted.