NLRB Finds Benefits Comparison by Employer Prior to Decertification Election Violates NLRA

In G & K Services, Inc. , 357 NLRB No. 109 (Nov. 7, 2011), a divided panel of the National Labor Relations Board (NLRB) found that an employer engaged in objectionable conduct prior to a decertification election when it sent a letter to employees stating that employees who chose to decertify a union at one of its other facilities received better benefits after decertification. While the employer's letter included only true information and specifically included a disclaimer that the employer "could not make any promises" about what would happen in regards to wages and benefits if the union was decertified, the NLRB found that the employer's statement constituted an "implied promise of benefit" if the employees voted for decertification. 

In making this decision, the NLRB drew a fine line between acceptable communication by an employer about wages, benefits, and working conditions at its unionized and non-unionized facilities and objectionable conduct that implies a promise of benefit to the employees if they choose to decertify.  The NLRB confirmed that an employer may make a "factual comparison" between its unionized and non-unionized facilities and that an employer may respond to employees' requests for information regarding previous decertification elections and the wages and benefits that resulted.  However, the NLRB found that the employer "expressly linked" the extension of benefits to the employees at its other facility with their decision to decertify the union, and that this went beyond a mere description of historical fact and suggested that the employer would reward the employees if they decertified the union.  

Additionally, the NLRB distinguished its decision in TCI Cablevision, 329 NLRB 700 (1999), which found that the employer did not engage in objectionable conduct when it responded affirmatively to an employee's question about whether employees would receive the employer's 401(k) plan if they decided to decertify. The NLRB emphasized that in TCI Cablevision , the employer was required by the terms of the plan to offer it to all non-unionized employees, so its statement was not an offer of additional benefits as a reward for decertifying but a "permissible statement of historical fact." However, in the current case, the employer was not required to offer its benefit plans to all of its employees and therefore the employer's statements were not "confined to a description of historical fact."

Due to the finding that the employer's letter was objectionable conduct under the National Labor Relations Act, the NLRB set aside the decertification election, which had passed by one vote, and required that a new election be held. Member Hayes dissented from the decision, arguing that the employer's statement was merely a statement of historical fact and did not constitute an implied promise of benefits and criticizing the majority's narrow distinguishing of previous decisions.

This decision is a caution for employers facing union elections to consider carefully the wording of any communications with employees regarding comparisons between unionized and non-unionized facilities in order to avoid an "implied promise of benefit" that may be deemed objectionable conduct under the NLRA.