But Blaming a Delay in Raises on the Union Is Also Unlawful.

As discussed elsewhere in this E-Update, an employer may violate the National Labor Relations Act by granting benefits under certain circumstances. But on the flip side, the employer may also violate the NLRA when it blames delays in benefits on the union.

In Garten Trucking Lc, the union lost an election but filed unfair labor practice charges alleging that the employer engaged in unlawful conduct that affected the election results. While those charges were being litigated before an Administrative Law Judge, the union distributed a flyer to the company’s employees, asserting that the union would help achieve raises for all union members. The employer posted a response, accusing the union of lying and stating, “As a matter of fact if it wasn’t for [the union organizers] trying to steal money out of your paychecks you would already have your raises.”

The National Labor Relations Board found the employer’s statement to be unlawful. Employers are prohibited from interfering with or coercing employees in the exercise of their rights under the NLRA, including their right to organize. The Board evaluates whether the employer’s conduct has a “reasonable tendency” to interfere with, restrain or coerce such activities. In this case, the Board found a clear violation of the NLRA because the employer blamed the union for the lack of raises – in effect, the employer “told employees they were paying a price for their union activities.”

Building upon the lesson from our other article, employers in the throes of a union campaign must be extremely careful about what they say and do about employment raises and benefits. The decision to grant or delay such raises and benefits must be for legitimate (and provable) business reasons unrelated to the union activity itself, and should be made in consultation with experienced labor counsel.