Conduct of labor consultants included unlawful interrogations, threats of wage reductions

By Joy Waltemath

By Ronald Miller, J.D.

Finding that two labor consultants unlawfully threatened employees with wage reductions should a union be elected as bargaining representative, threatened employees with futility regarding their rights to organize and bargain collectively, and interrogated employees about their union activities, the Fifth Circuit denied an employer’s petition for review of an NLRB order and granted the Board’s cross-application for enforcement. The court observed that the incidents occurred “shortly before an election;” the consultants were “charged with combatting the Union’s organizing campaign;” the conversations were not friendly or joking; and they were accompanied by threats referencing employees’ economic dependence on the employer (UNF West, Inc. v. NLRB, December 20, 2016, Stewart, C.).

Union election. In 2012, after the union conducted an organizing campaign, the Board conducted a representation election, which the union lost. Thereafter, the union filed objections based on alleged unfair labor practices and asked that the Board set aside the election results. Before an administrative law judge ruled on the matter, the union withdrew its objections and sought again to be elected as the employees’ representative. Meanwhile, the ALJ rendered his decision, which the Board adopted and the D.C. Circuit enforced. The Board set a new election date, but cancelled it due to fresh allegations of unfair labor practices by labor consultants acting on behalf of the employer.

After a hearing, a second ALJ found the consultants’ conduct unlawful insofar as it involved coercive interrogation with and making threats of futility to two employees, and threatening a group of employees with the possibility of a reduction in wages, based on three separate incidents.

Interrogations. In the first incident, an employee attended a meeting at which a consultant was present. The employee was an open union supporter, although there was no evidence that this fact was known to the employer. After the meeting, the consultant approached the employee at his work station and inquired as to how he felt about the union. The employee replied, “Is this an interrogation? I’m working. Leave me alone. I’m working. Don’t interrupt me.” After the employee produced a document entitled “Employee Rights Under the National Labor Relations Act,” the consultant responded that “This document doesn’t work here, my brother.”

With regard to the second incident, the consultant allegedly approached another employee and asked “What about the Union?” “I have heard that the Union is making a lot of promises.” The employee responded suggesting that the consultants were “making false promises” and threatening employees. He also produced the employee rights document. The consultant admonished the employee that the document was “useless,” as “[t]he company ha[d] its own policies.”

Wage reduction threat. As to the third incident, the second employee was required to attend a slide presentation in the human resources department. Another consultant began the meeting by speaking ill of the union. After the employee questioned him about a rumor that the employer would reduce wages if the union won, the consultant responded that “If the Union won and they would represent [you] . . . the company could lower [your] wages, salaries . . . because the company pays [your] salaries.”

The Board adopted the law judge’s rulings. Thereafter, the employer petitioned for review of the Board decision finding that it engaged in unfair labor practices.

Threats to reduce wages. The ALJ found that the consultant’s statement that the employer could reduce employees’ wages because it pays those wages could be reasonably interpreted as conveying a threat that the employer would unilaterally reduce wages should the union win the election. The statement came before a slide presentation, and there was no mention of collective bargaining. On appeal, the Fifth Circuit rejected the employer’s contention that because the slide presentation described collective bargaining in an objective manner and disclaimed authority to make threats, it established that the consultant’s statements were made in the context of collective bargaining.

Here, the appeals court agreed with the Board and ALJ that the consultant’s statements constituted a threat to reduce wages in violation of Section 8(a)(1). The record showed that the context existing contemporaneously with or immediately prior to the consultant’s statements was devoid of reference to the give and take of collective bargaining. Moreover, the slide presentation did not address the earlier implication that the employer could unilaterally reduce wages. Any remedial statements must be specific in nature to the coercive conduct. In this case, the slide presentation failed to specifically address the earlier implication that the employer could unilaterally lower wages if the union carried the election. Accordingly, the court concluded that the ALJ’s holding was not in error.

Threats of futility. The ALJ also found that the consultant acted unlawful in relation to his assertion that the document regarding employee rights did not apply to the employer, and therefore that it was useless for employees to attempt to organize and join the union. On appeal, the employer argued that neither statement was accompanied by a threat of action to ensure futility, and so did not run afoul of Section 8(a)(1). The appeals court disagreed, finding that threats of futility include “remarks concerning the futility of electing a union,” or that communicate a message to “employees that selection of a union would be an ‘exercise in futility.’”

The Fifth Circuit reviewed the record for affirmative evidence that (1) remarks were made concerning the futility of exercising unionization rights and (2) those remarks were conjoined with a threat or implication the employer would act to ensure the futility of union organization. In this case, the court found evidence that the consultant’s statements constituted threats of futility. The consultant’s remark that “this document doesn’t work here” in reference to the employee rights document suggested that such rights were not enforceable by the employees. This statement thus communicated the futility of exercising these rights. Moreover, a consultant’s reminder of who pays an employee’s check constitutes a threat or implication that the employer could take some action to ensure the futility of unionization. The reference highlighted the employee’s economic dependence on the employer, and told the employee that the employer was in sole control of the achievements of unionization.

Coercive interrogation. Finally, the ALJ found that conversations between a consultant and two employees constituted coercive interrogations. Here, the employer objected that the law judge failed to apply all the factors identified in the Second Circuit’s decision in Bourne v. NLRB. The appeals court rejected the employer’s contention that some of those factors that were not applied would have weighed in its favor. Rather, the court found that Bourne factors are analytical guiding lights—not a mandate for formalistic analysis. There is no requirement that an ALJ apply all the factors to every situation. Thus, if there is no requirement to apply all factors, then a failure to apply them all cannot be legal error. Here, the Board’s discussion of facts relevant to the factors it did apply in this case met the Bourne requirement.

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