Employers’ Free Speech Rights About Unions Remain, Despite Scrutiny

Employers can still share facts, opinions, and examples—sometimes referred to by the acronym FOE—about unions, despite increased scrutiny about whether opinions are unlawful threats.

If employers are opposed to unionization, they should exercise their free speech rights during an organizing campaign, said attorney Phillip Wilson, president of LRI Consulting Services Inc., in Broken Arrow, Okla.

He said, “A lot of employers are concerned about exercising their protected speech rights because they don’t want to be targeted” by the National Labor Relations Board (NLRB) general counsel, who is independent from the board and prosecutes unfair labor practice cases, or the NLRB itself. “In my view, this is the wrong approach.”

Once a union is voted in, “you’re basically stuck with it,” Wilson added. “Well over 90% of workers covered by unions today never had a chance to vote on whether they wish to remain represented.”

Facts

Amy Moor Gaylord, an attorney with Akerman in Chicago, said factual statements about unions may involve:

• How much they charge their members in dues and any other fees.
• How many strikes and/or lockouts they have been involved in over the past few years.
• Whether they have been sued and for what.
• Whether any of their leadership has been indicted or sent to prison.
• Anything that can be found in a union’s LM-2 form, such as how much that union pays its officers and business agents, how much it collects in dues each year, how much it spends on business vehicles for its officers and organizers, and how much it spends on parties or travel.

Facts about collective bargaining, such as the average length of time it takes to bargain an initial contract, may also be shared with employees.

“Generally, anything that is verifiable by a reputable source has always been safe to discuss in the context of union organizing,” Gaylord said. “I still believe facts like these are safe to use.”

Opinions

Nonetheless, Gaylord said that unions and the NLRB’s general counsel are increasing their scrutiny of opinions about unions.

“I recently received an objection to an election based on the employer’s statement of opinion that the union was unnecessary, ” she said. “That has forever been a perfectly legal statement. I do not even understand how the union can claim that is coercive.”

“While the NLRB focuses on balancing workplace power dynamics, companies must retain the right to maintain cultures that support legitimate business objectives,” said Emily M. Dickens, J.D., SHRM chief of staff, head of government affairs, and corporate secretary. “Employers can’t be expected to comply with the NLRA [National Labor Relations Act] when unfair labor practice enforcement turns on arbitrary factors or is inconsistent.”

Gaylord said that lawful opinions include:

• “I believe we are better off without a union between us.”
• “I believe unions are only after your dues money.”
• “I don’t think unions look after their members’ best interests.”

An opinion must be noncoercive, she added.

“I once had a supervisor ask me if it was OK to say, ‘It’s my opinion that any employee who supports the union should be fired.’ That is not an opinion: That is a threat disguised as an opinion,” Gaylord said.

David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis, noted that companies cannot:

• Threaten employees based on their union activity.
• Interrogate workers about their union activity or sentiments.
• Make promises to employees to induce them to forgo joining a union.
• Engage in surveillance—that is, spying—on workers’ union-organizing efforts or create the impression of surveillance.

This prohibition is generally known by the acronym TIPS.

“That generally is the universe of comments companies need to avoid,” Pryzbylski said. Employers wanting to remain union-free can find comfort in the fact that there are a lot of things they can lawfully say to their workers about unions.

Threats or promises cannot be dressed up as opinions, he cautioned. For instance, a manager can’t lawfully say, “In my opinion, this site will shut down and you’ll lose your job if you vote the union in.”

That is an unlawful threat even though it’s communicated as an opinion, Pryzbylski said.

An employer might not oppose unionization, noted Jonathan Keselenko, an attorney with Foley Hoag in Boston. For example, in regulated industries where an employer needs union support to get a license, it may be neutral during union organizing, he said. But many organizations prefer not to have a union, Keselenko added, saying that managers need to be trained on what they can and cannot say.

Examples

Wilson said lawful examples about unions can include, if true, a statement that “a union represented employees at this local company who were recently laid off, so the union did not protect their job security.”

A manager’s or supervisor’s own personal experience with a union may be shared, Gaylord said. She prefers small group meetings or individual discussions to large “captive audience” meetings about unions. Some states, including Illinois, ban mandatory attendance to captive audience meetings.

“My approach has always been to tell employees that you will be having a meeting to talk about the union and employees are free to attend—and there will be donuts or other treats—or remain at their workstation working,” Gaylord said. “I find most employees would prefer the paid break.”

Gaylord shared her own personal experience as an example about unions. She said that both of her parents had negative experiences as union members.

“In my mother’s case, it was the principal of the school that she worked at—she was a school nurse—that fought against the union for her to get her pension vested at the higher level in place at the time she put in for retirement rather than at the lower level that had been negotiated in the new CBA [collective bargaining agreement] at the time she actually stopped working.”

Her father, a teacher at a different school, “watched the union bargaining team just give away things to management without getting anything in return for them,” Gaylord said.

There can be close calls as to whether employers’ statements about unions are unlawful threats or lawful opinions. But the NLRB protects employer free speech, Pryzbylski noted. “If the board ever were to try to eliminate it without Congress amending it, federal courts would likely strike down those efforts,” he said.