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Published: 2008-03-26

NLRB Limits Employer Campaign Speech



In a decision that appears to break from at least the spirit, if not the letter, of established federal labor law, the National Labor Relations Board recently ruled that certain employer campaign propaganda violated the National Labor Relations Act by impliedly threatening that the company would close Its doors if its employees voted for union representation by the UAW. Eldorado Tool, Division of Quamco, Inc., 325 N.L.R.B. No. 16 (November 9, 1997). NLRB Members Fox and Higgins reversed the administrative law judge's decision to the contrary, while NLRB Chairman William Gould dissented from the majority opinion. (Fox, Higgins and Gould all affirmed the ALJs findings that the employer, Eldorado Tool, had violated the Act by failing to implement a job reevaluation program after a union petition had been filed, and otherwise threatening employees with loss of benefits, plant closure and job loss if they selected the union.)

During the UAW's organizational campaign, Eldorado displayed its "UAW Wall of Shame" banner, beneath which it placed a number of paper tombstones, each of which had "RIP" with the name of a UAW-represented plant which had closed. Every couple days, Eldorado would add another tombstone bearing another closed UAW-represented plant. On the day before the election, the company posted a tombstone with the name "Eldorado" on it and a question mark in the middle. Also during the campaign, the company sent letters to the employees' homes, three of which addressed the issue of closed UAW-represented plants. The first letter stated, "the UAW organizer may claim that you cannot lose in negotiations. Don't tell that to the UAW employees of Delco -they lost their jobs." The second letter referred to five area UAW plants which had closed, and advised employees to "Vote 'NO' to the UAW and job insecurity." The last letter set out fifteen questions employees should ask the union, one of which stated, "Will the UAW guarantee that I won't lose my job just like the UAW represented employees at Delco, Century Brass, and Torin Company?"

Despite conceding the accuracy of the company's information regarding the closed plants and their UAW represented status, Members Fox and Higgins found that the clear implication of the "Wall of Shame" and the letters was that the fate of the Eldorado plant would be thrown into question if, and only if, the employees chose union representation. According to Fox and Higgins, the "Wall of Shame" implied that the closings were the fault of the UAW and that the same fate of plant closure and job loss awaited Eldorado employees. Moreover, Fox and Higgins gave substantial weight to the fact that the company never sought to clarify its message or to assure its employees that it was not predicting that the same fate awaited the Eldorado plant that befell the other UAW-represented plants. In their opinion, in order for Eldorado to have avoided a violation of the Act, the company would have had to offer objective facts as the basis for its belief that ' for reasons beyond Eldorado's control, selection of the UAW as the employees' bargaining representative could cause the closure of the plant. Instead, the employer remained mute regarding the basis for its assertion that the UAW was to blame for those other plant closings and implied that the employer would retaliate if the employees chose the UAW as their collective bargaining representative. Fox and Higgins attributed no significance to Eldorado's asserted defense that the UAW had the opportunity to, and indeed did, respond to and counter the "Wall of Shame" display.

Regarding the letters, Fox and Higgins found that Eldorado did not merely convey a legitimate message that the union could not guarantee job security, but rather, Eldorado strongly suggested that employees' job security would be in jeopardy if they chose to be represented by the UAW. Fox and Higgins warned that "a prediction that unionization may cause job insecurity must be carefully phrased on the basis of objective facts so as to avoid any implication that the employer is threatening to act or not act in retaliation for union activities rather than for economic reasons."

In a somewhat surprising dissent, NLRB Chairman Gould disagreed with his colleagues regarding the legality of Eldorado's "Wall of Shame" and campaign letters. In Gould's opinion, an employer may lawfully make references to a union's past record, since such references are a fact of industrial life. Gould stressed the speech protections afforded employers under the First Amendment and the National Labor Relations Act, and he embraced the employer's free speech right to communicate its views to employees. In Gould's view, "The proper response to any speech, accurate or inaccurate, is more speech not less speech and ... [the Board's] efforts should be directed toward ensuring that unions as well as employers have a full opportunity to communicate with employees." It should be up to the union, Gould stated, to respond to any incomplete or inaccurate statements by the employer. Gould added that Board precedent clearly held that an employer is permitted by Section 8(c) of the Act to present its views of the economic realities of unionization to its employees, and that Eldorado's statements were factually accurate references to plant closings and, therefore, protected under 8(c) in the absence of a prediction that the same thing would occur at Eldorado's plant.

Gould summarized by stating his view that the Board should not seek to regulate campaign speech by the union or the employer, so long as that speech is free from coercion or threats, and that existing methods of communication should be utilized to the fullest so as to promote "full and wide open discussion of 'all the arguments for, as well as against, unionization."'