In what appears to be a first-of-its kind decision, the National Labor Relations Board recently determined that an employer committed an unfair labor practice when one of its managers asked a pointed question via text message to an employee about whether his loyalties lie with the company or with the union.
While most employers know – or quickly learn – that they should avoid interrogating their employees about union matters, this decision serves as an important lesson for management personnel dealing with a union drive.
The case started when the Redhook construction company in New York City found itself embroiled in a union organizing campaign. At the same time, one of the employees – Claudio Anderson – needed to take time off to travel to Panama to visit his ailing mother. Anderson’s direct supervisor granted the request for an extended leave of absence. However, Anderson’s plans changed when his mother’s condition improved, so he immediately reached out to his manager to let him know he was ready to come back to work.
The manager had learned, however, that Anderson was supportive of the union drive, so he texted back: “What’s going on with u? U working for Redhook or u working in the union?” Anderson texted him a few more times asking if he could return to work, and a few days later the manager texted back: “Not right now! I filled your spot.” The union filed an unfair labor practice charge against the company for the way it treated Anderson, and the NLRB concluded that Redhook violated federal labor law.
The National Labor Relations Act (NLRA) makes it an unfair labor practice for an employer “to interfere with, restrain or coerce employees” in the exercise of their protected rights. Among the whole host of restrictions preventing management from interfering with a union organizing drive is the rule that you can’t interrogate your workers about their support of the union, nor ask them to reveal details about how their coworkers are leaning. That means you can’t ask them for names of coworkers who attended union organizing meetings, if they have signed an authorization card or how they plan to vote.
In the NLRB’s Redhook decision, the Board ruled for the first time that a company’s inappropriate interrogation can be carried out by text message. The text was sent in direct response to the employee’s inquiry about whether he should return to work, it ruled, which seemed to place inappropriate pressure on Anderson to disavow support for the union.
Although the company argued to the Labor Board that a text message couldn’t constitute an unlawful interrogation, the NLRB cited two earlier cases involving coercive writings and phone calls to demonstrate that interrogations need not be face-to-face in order to violate the law. Applying these same principles to a 21st-century method of communication, the Labor Board found “no reason why there should be a safe harbor for coercive employer interrogations via text messages.”
This decision should not be all that surprising to employers. With the prevalence of text messages among workers and supervisors, it is, in fact, somewhat surprising that such a decision was not reached several years ago. It serves as a valuable lesson for employers, however, to ensure they properly train managers on their conduct during union election campaigns.
It also reminds managers to treat text messages to employees with caution, recognizing they might be more casual in style, but still create a permanent record of communication that can serve as admissible evidence in a legal proceeding.
Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing the interests of employers in all aspects of workplace law. He can be reached at (503) 205-8044 or RMeneghello@fisherphillips.com, or followed on Twitter @pdxLaborLawyer.