July 30, 2021

Volume XI, Number 211

Advertisement

July 29, 2021

Subscribe to Latest Legal News and Analysis

July 28, 2021

Subscribe to Latest Legal News and Analysis

July 27, 2021

Subscribe to Latest Legal News and Analysis

D.C. Circuit Clarifies Boundaries of Protected Employer Expressions

On June 1, 2021, the U.S. Court of Appeals for the D.C. Circuit overturned a NLRB determination that a manager’s incorrect blaming of a union for discrepancies in an employee’s paid-leave time constituted an unfair labor practice. The pivotal issue was whether the manager’s statements had a reasonable tendency to interfere with employees’ labor rights. As discussed below, the D.C. Circuit rejected the NLRB’s determination that the manager’s statements had a reasonable tendency to interfere with employees’ labor rights, reasoning that the manager’s misstatements were lawful expressions of the employer’s opinions.

In a dispute between Trinity Services Group, Inc. (the “Employer”) and United Food and Commercial Workers Union, Local 99 (the “Union”), the Union had negotiated a paid-leave plan at the Employer’s unionized facilities that differed from the Employer’s paid-leave plan applicable at non-unionized facilities. In accordance with the Union’s plan, a bargaining unit employee believed she had accumulated three days of paid-leave time, but the Employer’s records indicated she had accumulated none because the parallel schemes overwhelmed the Employer’s bookkeeping software. The paid-leave discrepancy was brought to the attention of management, and one of the Employer’s managers blamed the Union for the inconsistency between the employee’s calculation of her paid-leave time and the Employer’s records. The manager made the following statements to the employee:

  • “That is a problem that the Union created regarding [paid leave].”

  • “You need to fix that with the Union.”

  • “That’s the problem with the Union.”

Section 8(c) of the National Labor Relations Act protects an employer’s right to express views, arguments, and opinions, so long as such expressions contain no threat of reprisal or force, or promise of benefits. Unprotected expressions, which contain threats or promises, may be used against employers as evidence of unfair labor practices. The test to determine if an employer’s expression can be used as evidence of an unfair labor practice is whether a reasonable employee would have interpreted the expression as threatening or promising a benefit. For example, statements that employees would be punished if they voted for unionization, and suggestions that employee benefits would increase if employees voted against unionization, have been found to constitute unprotected expressions.

Here, the NLRB determined that, because the Employer’s manager did not have an objective basis for blaming the Union for the paid-leave discrepancies, the manager’s misstatements were unfair labor practices. However, as the D.C. Circuit recognized, the NLRB’s holding that mere misstatements constitute unfair labor practices has no statutory or precedential basis. The D.C. Circuit overturned the NLRB’s decision, concluding that the misstatements were protected expressions of opinion under Section 8(c) of the Act. Acknowledging the often subtle and veiled nature of threats and promises, the D.C. Circuit reasoned that, under the circumstances, no reasonable employee would have interpreted any of the manager’s statements as threatening or promising a benefit. Additionally, the D.C. Circuit expressly declined the NLRB’s request to expand the Act to prohibit employers’ misstatements that could reasonably mislead employees, but involve no threats or promises.

The D.C. Circuit’s holding clarifies the scope of employer expressions protected under the Act, and limits the reach of the Act to its statutory text. This ruling is a win for employers.

*Keenan Judge is a law student at University of Virginia School of Law who joined Hunton Andrews Kurth as a Summer Associate in 2021.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 169
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Lukas Moffett Employment Lawyer Hunton AK
Associate

As an associate in the firm’s labor and employment group, Lukas assists clients in employment litigation and general compliance matters.

Lukas focuses on litigation matters involving employment discrimination and the employer/employee covenant relationship. Lukas also helps employers comply with anti-discrimination laws by advising on employee termination and consultation procedures. In addition, he is involved in the firm’s pro bono efforts.

Relevant Experience

Advises employers regarding...

214 979 2908
Scott Nelson Houston Labor Employment Lawyer Hunton Andrews Kurth Law Firm
Partner

Scott has significant experience—and has had great success—with high-profile domestic and international employment matters, as well as complex employment and commercial litigation.

The most valuable asset of a successful business is its people. Clients look to Scott as a seasoned, trusted, and regular advisor who helps them handle their most sensitive people matters in a thoughtful, practical, and strategic manner. He helps clients achieve their business objectives, while complying with ever-changing employment laws. When litigation arises, clients trust Scott to handle everything...

713-220-3654
Advertisement
Advertisement