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More Than Words of Disparagement: Does an Anti-Union Post Have to be Extreme to Go too Far?

In the union context, a significant degree of “vituperative speech” is allowed in the “heat of labor relations.”  For example, an owner of 10 Jimmy John’s sandwich shops in the Minneapolis-St Paul area was subject to an organizing campaign by the International Workers of the World where some disparaging comments were being served on the union.  During the union campaign, various managers and employees set up an anti-union Facebook page, which was open to anyone.  A National Labor Relations Board Judge recently ruled, among other things, that some conduct of management on the Facebook page constituted an unfair labor practice, interfering with an affected employee’s Section 7 rights under the National Labor Relations Act (“NLRA”).  Basically, some managers posted unflattering comments regarding a pro-union employee. The case is Miklin Enterprises, Inc. and Industrial Workers of the World (case numbers 18-ca-19707; 18-ca-19727; and 18-ca-19760) (April 20, 2012).  This is a recent opinion and the employer has yet to decide if it will appeal.

Did Jimmy John’s violate the NLRA because the manager or others in management commented on the pro-union employee’s unibrow?  Calling him the “Unibrowner”?  Was it because a manager posted a message to the employee:  “F**k You David Forever”?  No.  It takes more than words like these.  The Section 7 violation occurred when the manager provided the pro-union employee’s phone number and asked Facebook members to text the employee and “let him know how they feel.”  The NLRB Judge explained that the “Unibrowner” and “F**k” words of disparagement had to be tolerated but the encouragement by the manager to the Facebook members to text the pro-union employee “without any specification of what [to] communicate” was inviting harassment of the employee based on his Section 7 right to engage in union organization. 

Words of disparagement alone concerning a union do not violate the NLRA.  Rather, the Judge explained that if disparagement conveys explicit or implicit threats, suggests that employees’ union activities are futile or constitutes harassment that would interfere with Section 7 rights, employers must refrain.  Instead, in these cases, employers say it best, when they say nothing at all. A copy of the decision can be obtained through the union’s dedicated web page.

Matthew Deffebach is a partner in the Labor and Employment Practice Group of Haynes and Boone. He is certified by the Texas Board of Legal Specialization as a labor and employment law specialist. In 2010, Law360 named him a rising star and one of 10 employment lawyers under 40 to watch. He was selected for inclusion in Texas Super Lawyers - Rising Stars Edition (2005-2010). Matthew was recognized as a Texas Super Lawyer by Texas Monthly in Employment and Labor (2010-2011).

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