Employers Have a Protected Right to Share Their Views and Opinions (Absent Promises or Threats)
When it comes to communicating with employees, employers sometimes have to think carefully before communication with employees represented by a union. There is a risk of violating the National Labor Relations Act (NLRA) or other federal laws when employers communicate directly with union workers. However, as outlined below, as long as the employer is careful to avoid bargaining directly with employees or making threats or promises to employees, the employer has a statutorily protected right to communicate its views and opinions to employees.
Legal Protection and Limits of Employer Speech
As an initial matter, the NLRA protects the employer’s ability to communicate with employees in a non-coercive, non-threating manner. Specifically, under Section 8(c) of the Act, the expression “of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice…if such expression contains no threat of reprisal or force or promise of benefit.” This protects employer expression as part of verbal statements (by the employer or its agents, i.e., supervisors), written postings and flyers, and even printed mailers.
While this legal protection is sweeping, there are some legal limits to what an employer can share with employees. First, as noted above, the communication cannot contain a “threat” or “promise of benefit.” What’s more, the communication cannot seek to undermine or bypass the union by soliciting employees to “abandon” the union and negotiate with the employer directly over wages and other terms and conditions of employment.
What Types of Information Can an Employer Share?
The next question, then, is what information can employers share with employees represented by a union, subject to the limits above. While every situation is different, and you should rely on the advice of experienced labor counsel, the following is a general discussion of lawful communications to bargaining unit members.
The Employer’s Bargaining Proposals
The Board has long recognized that an employer has a right to inform employees, in non-coercive terms, of its bargaining proposals, including the reasons for its actions and its bargaining objective. The Board will not find that the employer engaged in unlawful “direct dealing” unless the circumstances are such that the employer’s communication with the employees undermined the union’s status or authority.
Thus, for example, providing employees with copies of proposals that the employer had submitted to the Union for consideration is perfectly appropriate. The employer can explain its reasons for giving the proposals and emphasize that it believes that its proposals are reasonable and should be agreed to by the union. The materials generally should not exceed what was previously provided (or explained across the table) to the Union.
Status of Negotiations
Employers are also authorized by the NLRA to share the status of negotiations. For example, in Proctor and Gamble Mfg. Co., 160 NLRB 334 (1966), the Board found that the materials the employer drafted during negotiations and gave to employees (regarding the status of negotiations and explanations of the positions advanced by the employer as well as the refutation of inflammatory charges made by the union and criticism of the union’s bargaining strategy and positions) were lawful in part because they did not “exceed matters previously advanced to the Union in a bargaining context.”
The Union’s Proposals and Responses
Employers are also authorized by the NLRA to share the union’s proposals and the union’s responses to the employer’s proposals. For example, in Outboard Marine Corp., 143 NLRB 535 (1963), the employer posted a notice to employees stating that the union had rejected its proposed wage increase. The notice stated that the employer had received a letter from the union “requesting the Company not to put the increases into effect as planned.” The union claimed that the notice was unlawful. The Board disagreed, concluding that the notice simply advised employees of the “status of negotiations,” which does not violate the Act.
What Types of Information Should an Employer Consider Keeping to Themselves
Political Beliefs and Opinions
An employer’s political beliefs and opinions are certainly protected by Section 8(c) of the NLRA. However, there are reasons for employers to keep these beliefs and opinions to themselves. First, as noted above, political beliefs and opinions must not contain a “threat” or a “promise of benefit.” Second, outside of the NLRA, an employer’s political stance could be viewed as “harassment” or “discrimination” by classes of employees under federal and state EEO laws. Thus, employers may be well-served to keep their political views to themselves.
Union Officer Elections
While the law is clear that an employer can share its beliefs and opinions regarding a union authorization election (absent threats or promises of benefits), the question of whether an employer can opine on a union officer election is a different question. Section 8(a)(2) of the Act makes it an unfair labor practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.”
While case law is sparse on what amount of persuasion would constitute unlawful “inference with the…administration of any labor organization,” employers may be well-served to keep any forceful opinions to themselves. A simple statement that, in the employer’s opinion, a particular union officer and candidate is a “good person” or “has the best interests of bargaining unit members in mind” would likely be OK. But, given the lack of case law, it may be safest to simply advise employees to “be sure to vote” in the union officer election and to “review information on all of the candidates before voting.”
As you can see, the NLRA recognizes that employers have broad authority (under the First Amendment) to share their beliefs and opinions, provided, of course, that they are shared in a non-coercive and non-threatening manner. That said, there are still legal pitfalls to employers who are not careful to avoid dealing directly with their employees, create exposure under other EEO laws and potentially interfere with union administration. With these legal limits in mind, employers should feel comfortable sharing their beliefs and opinions with bargaining unit employees.