The General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or “Board”), Jennifer Abruzzo, has opened the vault and released previously unseen Advice Memoranda from her Obama-era predecessor General Counsel Richard Griffin, in her bid to continue to upend long-standing Board law. Abruzzo, who was Deputy General Counsel under Griffin, and who now heads the Office of the General Counsel, has released a slew of historic Advice Memoranda that shed light on her legal theory to limit employer’s free speech rights and their ability to communicate with employees about the real-world consequences of unionization on the workplace and the employer-employee relationship.
On January 30, 2023, the Board released several Advice Memoranda authored during Griffin’s term, wherein Griffin outlined his intent to urge the Board to adopt a more restrictive standard prohibiting employers from sharing facts and opinions with employees about how union representation may frustrate employees’ ability to resolve issues and concerns directly with their employer. Since Abruzzo stepped into the GC role, she has doubled down on Griffin’s effort to limit employer free speech, going so far as to argue that employers cannot hold mandatory meetings with employees on company time to discuss unions or even one-on-one conversations on the topic where an employee is obligated to remain and listen.
The GC’s Plan to Re-Examine the Current Tri-Cast Standard
Under a 1985 case called Tri Cast,[1] the Board set the current standard for what employers may lawfully say to employees about how unionization impacts the employer-employee relationship. In that case, the Board evaluated an employer’s statements advising employees that it could no longer “work on an informal and person-to-person basis” if they unionized, noting that “[the employer would] have to run things by the book, with a stranger, and will not be able to handle personal requests” as it had done in the past. The Board deemed this language consistent with section 9(a) of the National Labor Relations Act (“the Act”), and thus lawful, reasoning that the employer appropriately described how the employer-employee relationship changes after employees vote to join a union.
The release of four historic Advice Memoranda from Griffin’s Administration signals a renewed effort by Abruzzo to urge the Board to find that employer statements that “impliedly threaten that employees will no longer be able to have a direct relationship with management after the election of a union representative, constitute coercive threats of loss of benefits under Section 8(a)(1).” These Advice Memoranda are not precedential but provide important insight into how NLRB Regional Offices investigating similar allegations may proceed.
Examples of Statements Found Unlawful by the Division of Advice
In the May 8, 2014 Advice Memorandum regarding Faurecia Interior Systems, the Division of Advice found unlawful the following statements by the employer:
- [I]f there was a union, the company would lose all flexibility to assist employees with work-related issues … [e.g.,] if an employee came in a minute or so late and got an attendance point, the company would have no discretion to work with the employee to remove it or discuss any possible excuses or adjustments and instead, employees would have to go to their elected shop steward and file a grievance to get an adjustment…
- [E]mployees would not have their own voice, the union would be [employees’] voice, [employees] could no longer come to HR or the plant manager and talk to them about [their] problems, [they] would only be allowed to do that through a union representative.
- You can’t just come to me anymore. You have to go to your union rep. Then you have to wait until your union rep has time to come to meet with me. And who’s to say you can trust the union rep? Why would you want to put your job in somebody’s hands to talk about the hiring and firing process.
Some of the statements deemed unlawful by the Division of Advice in its June 10, 2015 Advice Memorandum regarding FCi Federal include:
- The number one difference with a unionized environment is that you will not have the pleasure of working with me or [redacted] directly. You will have to go through the [U]nion to have a relationship with us.
- In a union-free environment, we will have the opportunity to work with you to make the necessary changes to improve how the site is managed. In a unionized environment, we may not have that opportunity.
- … we believe it is not in the best interest of our future employees and our company to have an outsider come between us. We believe that an outsider would not improve how we treat our employees, but instead, could be divisive.
The Division of Advice considered the following similar statements by Hendrickson USA, LLC to be unlawful in its January 21, 2016 Advice Memorandum: “our direct employee relationship [will be lost]”; “you’ll be giving up your right to speak for and represent yourself”; “the culture will definitely change”; “relationships suffer”; and “flexibility is replaced by inefficiency.”
The Division of Advice found that the statements in these three cases were unlawful because they threatened an elimination of access to the employer and a more adversarial workplace if the employees voted for the union.
The Division of Advice indicated its approval of statements that “explain that with union representation the union will be a participant in employer-employee relations generally.”
The Division of Advice also indicated its approval of statements made in its May 5, 2017 Advice Memorandum regarding Omni Scottsdale Resort, which was the final of the four Advice Memoranda released on January 30, 2023. Here, the Division of Advice opined that the employer’s statement that employees would be giving up their legal right to deal directly with the management team on working conditions was not in violation of the Act because such a statement “would be reasonably understood by employees to concern the impact that unionization would have on their ability to deal with the Employer themselves, over bargainable subjects, rather than their ability to present grievances under Section 9(a).”
What Does This Mean for Employers?
The recent release of these Advice Memoranda signal that the Board’s GC is seeking similar cases with which to urge the Board to overrule Tri-Cast. The Board has not yet considered and ruled on this issue, but should the Board undo the standard set forth in Tri-Cast, such a decision will substantially affect what employers may say to employees during a campaign leading up to an election regarding union representation. Employers who are in the midst of union organizing campaigns should evaluate their planned communications with employees in light of the enforcement agenda that the GC has signaled with the release of these Advice Memoranda and weigh the potential risk of litigation against the cost of self-censoring communications with employees during a campaign.
[1] 274 NLRB 377 (1985).
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