By Kenneth R. Dolin

The Obama Board recently signaled that it would reexamine the doctrine set forth Tri-Cast, Inc., 274 NLRB 377 (1985). See Dish Network Corp., 359 NLRB No. 32 (Dec. 13, 2012). In Tri-Cast, the employer, on the day of the election, distributed a letter to employees that provided:

We have been able to work on an informal and person-to-person basis. If the union comes in this will change.

We will have to run things by the book, with a stranger, and will not be able to handle personal requests as we have been doing.

The Regional Director there concluded these employer statements misrepresented employee rights under Section 9(a) of the National Labor Relations Act, under which employees retain the right, with certain limitations, to present individual grievances to their employer. The Regional Director also found that the employer statements amounted to an unlawful threat to take away an existing employee right since the employer was implying, contrary to Section 9(a), that personal requests would not be handled as before simply because of unionization. Thus, the Regional Director found the employer statements were objectionable and warranted setting aside the results of the election.

The Board in Tri-Cast disagreed with the Regional Director’s finding that the employer threatened to withdraw rights preserved by Section 9(a). According to the Tri-Cast Board, the employer’s statement:

simply explicates one of the changes which occur between employers and employees when a statutory representative is selected.  There is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and the employers will not be as before.  This is especially so, as implied in the [e]mployer’s statement here, where a collective-bargaining agreement is negotiated.  For an employer to tell its employees about this change during the course of an election campaign cannot be characterized as an objectionable retaliatory threat to deprive employees of their rights, but rather is nothing more than permissible campaign conduct.

Id. at 377.

It is a fact of industrial life that union-represented employees often deal with their employer indirectly, through a shop steward, and that the desired result of collective bargaining–a collective bargaining agreement–often leads to fewer inconsistencies. Indeed, unions often campaign that they will eliminate management favoritism by limiting–if not eliminating entirely–management flexibility. Moreover, that employer statements may misrepresent Section 9(a) should not serve as a grounds for finding objectionable conduct because the Board does not set elections aside on the basis of misleading campaign statements. Notwithstanding the above, it is likely that if a Tri-Cast issue arises in connection with a future charge, then the Acting General Counsel will almost certainly issue a complaint and ask the Obama Board to reverse the well-established Tri-Cast precedent of more than 25 years. Furthermore, as it stands, the Obama Board appears to be inclined to overrule Tri-Cast. The effect of such a decision will be that employer statements are unlawful if they can reasonably be interpreted to mean that a union election will cause an employer to take away existing beneficial situations enjoyed by employees. Such statements also will be viewed as objectionable threats that warrant setting aside the results of an election.