Supervisor’s Statement Blaming Union for Leave Snafu Not Unlawful, says D.C. Circuit

The U.S. Court of Appeals for the District of Columbia Circuit vacated a National Labor Relations Board (NLRB or “the Board”) order finding a supervisor’s statement blaming the employees’ union for a leave discrepancy violated the National Labor Relations Act (NLRA).

Facts: In Trinity Services Group, Inc. v. NLRB, an employee and a supervisor disagreed regarding the amount of paid leave the employee had accrued. The employee worked in a bargaining unit represented by a union. The union had negotiated a unique paid-leave plan different from the plan at the employer’s other, non-union facilities. The supervisor blamed the unique paid-leave plan for the discrepancy. Undoubtedly frustrated by the differing paid-leave schemes, the supervisor stated that this was a “problem that the union created regarding [paid leave],” and that the employee “need[ed] to fix that with the union.”

NLRB Decision: The Board, in a 2-1 decision, held that the remarks violated Section 8(a)(1) of the NLRA, which prohibits interference with employees’ Section 7 rights under the NLRA to engage in union activity. The statements “had a reasonable tendency to interfere” with those employee rights, because there was “no objective basis for blaming the Union, rather than [the employer]” for the mix-up. Further, because the remarks were made during ongoing contract negotiations and grievance proceedings related to the paid-leave plan, the statements undermined the union’s status and could cause an employee to “lose faith” in the union.

D.C. Circuit Decision: The D.C. Circuit denied enforcement of the Board’s order, and held that the supervisor’s remarks are permissible “opinion[s]” protected by Section 8(c) of the NLRA. Section 8(c) protects an employer’s right to “express…any views, argument or opinion[.]” Further, unless an employer threatens reprisal or force, or promises benefits, such expressions “cannot be used as evidence of unfair labor practices.” The D.C. Circuit found that the supervisor’s statements contained no threats of reprisals or force, and a reasonable employee would not have viewed the statements as threats or promises. Perhaps more importantly, the D.C. Circuit rejected the argument that “materially false statements” lose the protection of Section 8(c). Indeed, the D.C. Circuit noted that “Section 8(c) does not require fairness or accuracy,” and any views, argument, or opinion are protected provided they are not accompanied by threats or promises of benefits. Because the supervisor expressed an opinion containing no threat of reprisal or force or promise of benefit, the supervisor’s statements were protected by Section 8(c) of the NLRA and the employer did not violate Section 8(a)(1) of the NLRA.

Takeaway: While the Board is not obligated to follow the D.C. Circuit’s holding – the Board’s decision in this case remains “good law” within the agency – this decision is encouraging for employers. The D.C. Circuit has jurisdiction to hear appeals of all NLRB orders in unfair labor practice cases, regardless of where in the country the dispute arises. Thus, employers can take comfort that the D.C. Circuit will not find that employer statements unlawful simply because they convey an opinion painting a union in a negative light, provided those statements do not contain threats or promises of benefits.