In the past week media reports abound regarding a controversial allegedly "anti-union" statement made by a high level executive associated with the iconic snack cake Twinkies. As widely reported late last year, the original Twinkie maker, Hostess Brands, Inc., was forced to close, liquidate and lay off its entire unionized workforce, publicly blaming the recalcitrance of its unions for the company's downfall. However, these statements did not cause this most recent controversy. Rather, it was comments from an executive connected with Hostess Brands LLC, the newly formed company which acquired many of the assets of the bankrupt predecessor, including the rights to make Twinkies, which spurred public attention.
As the snack cake savior prepares to reopen plants and hire a new workforce, interest has swirled as to when and how the new company would operate. Specifically, in an April 24th Wall Street Journal article the executive opined of the new Twinkie maker that "We do not expect to be involved in the union going forward."
This comment sparked controversy causing Hostess Brands LLC to walk back or clarify the statements and leading to some to opine that executives should not comment on labor matters. In fact, the headline of a May 2nd Law360 article asserted that "Silence Can Be Golden." This is not the first labor or union related comment by a high level executive of a company to generate controversy and it was met with predictable attention. The question is it advisable or practical to attempt to silence executives on labor matters?
Each situation will be different and certainly there will be times where public comment is not advisable, however, there are other times where the opinion or position of the company, announced from the highest levels, can advance an employer's labor goals or even support corporate or marketing efforts. For example, allowing employees, investors, customers and/or suppliers know what a company intends or is prepared for can be reassuring and yield positive results. Informing employees of the realities or risks associated with union may even be considered the ethical or honest thing to do. When crafted and used properly such comments can be a powerful weapon, both in communicating to employees and the market. In recognition of this, and acknowledging that unions are rarely silent, self-imposed unilateral disarmament is not always the best option.
To be clear, compliance with the National Labor Relations Act is full of pitfalls, especially under the current aggressively pro-union Board, and comments can result in legal and PR issues. That said, employers and their executives should start by understanding they too have rights and that Section 8(c) of the Act protects the privilege of every employer to engage in free speech. Specifically, Section 8(c) guarantees employers to right to communicate establishing:
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.
This allows employers and executives to, among other things, lawfully communicate in the following ways:
- Assert facts such as "the employees did not get paid during the strike and ended up losing their jobs after listening to union leaders."
- Express opinions, any thing from "I think the unions resulted in the closure of our predecessor's plants and lay off their employees" to "I think the unions sucked the filling out of the Twinkies and left nothing for the employee's future."
- Share their experiences, for example, "We sat through the discussions with the union during the bankruptcy and let them know we would be forced to lay off employees without concessions but the union refused to agree to a reasonable compromise and the employees all lost their jobs."
Moreover, the law permits employers to have an affirmative position and policy disfavoring union involvement in their business or asserting a tough line bargaining philosophy. For example, it is lawful for any employer, or executive, to assert in policy or comment:
- The Company's position is that while people should be free to join or not join a union, we believe we are the kind of company where employees will decide they do not need a union to speak for them. We are committed to informing our employees of the reasons we are opposed to third party interference and taking all appropriate actions to lawfully maintain our union free status.
Given the law, certainly establishing a policy to gag executives on labor issues is an a option, but a more realistic and effective approach is to involve and (sparingly) utilize the top executives in labor relations. In doing so executives should be guided by established corporate policy, educated and prepared on not only what and when to communicate but the process to make sure communications are both legally and strategically appropriate.
Management Missives
- Executives and management alike should feel empowered by labor relations communications, not stifled. This is possible with proper legal oversight and preparation.
- The cornerstone of any labor relations communications strategy should be a written and established policy detailing the corporate position on labor issues. Such policies can be phrases as Labor Relations, Third Party Interference, Union Free Status or another similar policy which best encapsulates the corporate position. In developing the policy is it important both to make sure that it is in compliance with the NLRA and also that it has the approval of the highest levels of executive leadership. Their buy in can be of paramount importance when and if the policy comes in to play.
- Executives should not only approve of the policy before it is adopted but time should be invested in making sure they understand the policy and how it can be used by them as a guide and tool to advance the company's objectives.
- Executives should be educated, beyond the policy, on the do's and don'ts related to labor related communications. Obviously, time constraints will typically not permit a full training but quick instruction during a board or management meeting and refresher emails or notices when labor issues are heating up not only guard against potential liability but provide executives needed tools.
- As any labor related communication has the potential to lead to an unfair labor practice charge, executives should be advised to work with labor counsel, as well as labor relations and public relations, prior to communicating. This includes any type of communication, whether it be about an intent to operate non-union, responses to union organizing, issues involved in union negotiations, strike related comments or merely general comment of unions.
- Remember, no two situations are identical. Employers and their executives need to think strategically about using their Executive Privilege to communicate lawfully about labor matters.