Agency Reaffirms Rule Against Coercing Workers

​In a Dec. 15 decision, the National Labor Relations Board (NLRB) upheld a long-standing prohibition against coercively questioning employees before a legal proceeding.

Under the standard the board favored, the questioning can't be coercive and must occur in a context free from employer hostility to unionizing. The questions must not exceed the requirements of their legitimate purpose by prying into other union matters and eliciting information about an employee's subjective state of mind.

"Today's decision maintains a well-understood 58-year standard that has proven successful in balancing employer needs and employee rights, while protecting the integrity of the board's process," said NLRB Chairman Lauren McFerran. "Because of the strong possibility of coercion in an employer interview about unfair labor practice issues, employees need protection. This familiar, bright-line test is easy for employers to comply with and brings certainty to the administration of the National Labor Relations Act."

The board found that, during questioning, a lawyer for Sunbelt Rentals, an equipment rental company based in Fort Mill, S.C., failed to tell an employee that his testimony would not affect his job and failed to tell another employee that his participation was voluntary.

We've gathered articles on the news from SHRM Online and other trusted news sources.

Preventing Coercion

The NLRB reaffirmed its legal safeguards against coercion when an employer interviews a worker while preparing for an unfair labor practice hearing.

The recent ruling maintains the standard for such interrogations from the board's 1964 decision in Johnnie's Poultry, which requires employers to explain the purpose of the questioning, assure workers that they won't face retaliation and get employees to voluntarily participate. The Johnnie's Poultry standard is designed to balance protections against worker intimidation with employers' need to prepare a defense to allegations of labor law violations.

(Bloomberg Law)

Examples of Violations

There are five categories of unfair labor practices for employers that are prohibited under the National Labor Relations Act (NLRA):

• Interference, restraint, or coercion. This includes supervisors who make threatening statements, question employees who assert their union rights or make false statements to workers seeking unionization.
• Employer domination or support of a labor organization.
• Discrimination on the basis of labor activity.
• Discrimination in retaliation for going to the NLRB. 
• Refusal to bargain.
  

(SHRM Online members-only resource)

Employers Can Express Opinions

The NLRA gives employees the right to form or join a union, and employers that interfere with that right or coerce employees may face charges of unfair labor practices. However, the act also gives employers the right to present arguments against unionization and express their opinions, as long as the argument "contains no threat of reprisal or force or promise of benefit."

Employers should be careful about using language that might fall into a gray area between permissible opinion and a threat that violates the NLRA.

Generally, companies cannot:

• Threaten employees (with loss of pay, loss of benefits, plant closure or discipline) based on their union activity.
• Interrogate workers about their union activity or sentiments.
• Make promises to employees to induce them not to unionize.
• Spy on workers' union-organizing efforts or create the impression of surveillance.
  

(SHRM Online)

Defining Coercive

The NLRB and courts have made mostly intuitive judgments about what is coercive. Threats over which the employer has control are considered coercive, but predictions of what could happen are not. The NLRA also prohibits labor unions from coercing a third party, such as a supplier, to boycott the employer.

(Jotwell)

Restrictions on Unions

Unions cannot coerce workers because they don't support the union. Unions must allow employees to refuse to be members, as long as they pay dues.

Furthermore, unions cannot strike, picket or encourage employees not to work where the purpose is to:

• Force someone to join a union.
  
• Force someone to cease doing business with another person.
  
• Force an employer to recognize one union as the representative of employees, if another union has been certified as the representative of those employees.
  
• Force an employer to assign disputed work to members of one union, rather than to another group of employees.