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Labor Board Rejects Presumption That Plant Closure Threat Was Disseminated

By Michael J. Stief
  • February 2, 2005

In another in a string of close decisions, the National Labor Relations Board has reversed a four-year precedent concerning threats of plant closure made during a union organizing drive. In issuing the 3-2 ruling, the Labor Board said it will not presume an employer's threat during an organizing drive to close its facility if employees voted for union representation was disseminated throughout the bargaining unit. [Crown Bolt, Inc., 343 NLRB No. 86].

In Crown Bolt, Inc., a unit of employees at one of the employer's facilities in California rejected union representation by 34 votes. The International Brotherhood of Teamsters filed objections to the conduct of the election and unfair labor practice charges. One of the charges involved an alleged threat of facility closure made by a production manager to an employee during the critical period prior to the election. While there was evidence that this employee, in turn, told two other employees about the threat, there was no evidence whether they told anyone else.

An administrative law judge dismissed every unfair labor practice allegation except the supervisor's alleged threat of plant closure. Relying upon the Labor Board's 2000 decision in Springs Industries, 332 NLRB 40, the law judge presumed the threat had been widely disseminated among members of the bargaining unit and recommended the election be set aside. The Springs Industries case overruled the longstanding precedent in Kokomo Tube Co., 280 NLRB 357 (1986), where the Labor Board found a threat of plant closure made to a single employee insufficient to overturn an election in the absence of evidence of dissemination. In Springs Industries, the burden was shifted, thus requiring the employer to prove that the threat was not disseminated or not disseminated sufficiently to have impacted the election results.

In its current reconsideration of the issue, the Labor Board found several flaws in the Spring Industries presumption that threats have been disseminated among the bargaining unit:

  • From a procedural perspective, the party seeking to "change the present state of affairs" and overturn election results naturally should be expected to have the responsibility to prove or persuade the decision-maker that the alleged threat was spread among the unit members.
  • The belief that it is "virtually inevitable" that plant closure threats be a topic of conversation among employees could be applied to other topics likely to be discussed among employees.
  • It is not necessary to presume dissemination, when it would be much easier to gather evidence that threats of plant closure were disseminated than to attempt to prove the threat was not disseminated.

As a practical matter, the Board decided not to apply the holding in Crown Bolt, Inc. to any matter before the Board as of the date of the decision, November 29, 2004. The Board was concerned that remanding all of the cases for proof of dissemination would be an exercise in futility and only will apply the rule prospectively.

Employers Should Train Management to Avoid Threatening Statements

While Crown Bolt, Inc. should be considered a victory for employers, it illustrates what can happen during a union organizing campaign when supervisors and managers lack awareness about what they can and cannot lawfully say to employees. Elections often are set aside, or bargaining orders issued, when supervisors either intentionally or inadvertently make threatening statements to employees. Therefore, it is imperative that employers provide all supervisors, as that term is defined by Section 2(11) of the National Labor Relations Act, with periodic training regarding their rights, responsibilities, and limitations during organizing activity. Such training should include guidance on how to recognize the early signs of union activity, signaling a period when observing lawful conduct becomes especially critical.

The Jackson Lewis Labor Practice Group can provide counsel and training to assist employers before, during and after union organizing drives.

©2005 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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