Unionization campaigns often become heated, resulting in claims and criticism by both management and organized labor that walk a fine line between protected speech and illegal intimidation. Last week, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) affirmed a National Labor Relations Board decision finding that a company owner violated federal labor law by claiming that the union campaign blocked employee pay increases.

In Garten Trucking LC v. NLRB, the union attempting to organize the employer issued a leaflet stating that the company could not grant pay increases without first negotiating with the union. The company owner responded, calling the union organizers "idiots," and claiming that employees would have already received the increases but for the union’s organizing efforts. The union filed an unfair labor practice charge with the NLRB, which found that the statements violated the NLRA, and in a separate case ordered the company to negotiate with the union despite winning the election.

The Fourth Circuit agreed with the NLRB that the employer’s statements violated Section 8(c) of the NLRA, because they established a quid pro quo for receiving pay increases. The remainder of the statement, including characterizing union organizers as "idiots," fell with the employer’s First Amendment rights.

Companies facing union organizing efforts must be circumspect about information provided to employees. Statements that constitute threats or promises tied to workers' decisions on unionization can violate the union’s legal rights, and result in reversal of a subsequent vote rejecting the union. In this case, the union may appeal this decision to the U.S. Supreme Court on the basis that the owner’s statements were mere hyperbole and not an actual promise or threat to employees. However, a more careful vetting of communications made to employees during the union campaign could have avoided these legal challenges in the first place.

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