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Don’t land in hot water by engaging in ‘textual harassment’

In what appears to be a first-of-its-kind decision, the National Labor Relations Board recently determined an employer committed an unfair labor practice when one of its managers asked an employee a pointed question via text message about whether his loyalties lay with the company or with the union.

While most employers know — or quickly learn — that they should avoid interrogating their employees about union matters, this decision demonstrates the NLRB could take a very broad approach when determining the contours of the law, and serves as an important lesson for management personnel dealing with a union drive.

RHCG Safety Corp. is engaged in the general construction trade in New York City. The company, also known as Redhook, found itself embroiled in an organizing campaign when a construction union commenced efforts to convince employees to vote in favor of union representation. At the same time, one of the employees — Claudio Anderson — needed to take time off to travel to Panama to visit his ailing mother. Anderson’s direct supervisor, David Scherrer, granted the request for an extended leave of absence.

Before Anderson was scheduled to leave for Panama, he stopped by the union offices and signed an authorization card indicating his support for a union election. Several other Redhook employees were present when this occurred.

Anderson’s mother must have taken a turn for the better because she informed him that he didn’t need to return to Panama to visit her. Anderson immediately reached out to Scherrer to let him know he would not need to take the extended leave of absence and was ready to come back to work. The manager texted back: “What’s going on with u? U working for Redhook or u working in the union?” Anderson ducked the question and instead texted Scherrer a few more times asking if he could return to work, and a few days later the manager texted back: “Not right now! I filled your spot.”

Anderson then visited the jobsite in person and Scherrer again told him there was no work for him. The union filed an unfair labor practice charge against the company for the way it treated Anderson, and an administrative law judge concluded Redhook violated the National Labor Relations Act because of Scherrer’s text messages. The NLRB reviewed the case and issued an opinion affirming the judge’s ruling on June 7.

Here’s a tip: avoid TIPS

Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain or coerce employees” in the exercise of their protected rights. Although numerous restrictions prevent management from interfering with a union organizing drive, labor lawyers often reduce their advice to employers to the following four-letter acronym: TIPS.

T — An employer cannot threaten its workers.

I — An employer cannot interrogate its workers.

P — An employer cannot promise its workers something of value in exchange for them voting against the union.

S — An employer cannot surveil or spy on its workers during an election campaign.

In regard to the “I,” it is well-settled that management is prohibited from interrogating its workers about their support of the union, or asking them to reveal details about how their co-workers are leaning. Prohibited behavior under the NLRA includes asking them for names of co-workers who attended union organizing meetings, asking if they have signed an authorization card and directly asking them how they plan to vote.

NLRB to employer: ‘U R in trouble’

The NLRB’s three-member panel ruled in the union’s favor and agreed Redhook committed an unfair labor practice when Scherrer sent him the text message that read: “U working for Redhook or u working in the union?” The text was sent in direct response to the employee’s inquiry about whether he should return to work, which seemed to place inappropriate pressure on Anderson to disavow support for the union. “By juxtaposing working with Redhook with working in the union, Scherrer’s text strongly suggested that the two were incompatible,” the panel found. When Anderson failed to pledge his loyalty to the company, he was fired, which was the final nail in the coffin for the NLRB.

What puts this case in the first-of-its-kind category is that the company’s inappropriate interrogation was carried out by text message. The company argued before the NLRB that a text message cannot constitute an unlawful interrogation. But the NLRB pointed out that its prior decisions demonstrated that interrogations need not be face-to-face to violate the NLRA. It cited a 1980 case wherein an unfair labor practice was upheld based on coercive writings and a 1981 case involving a phone call. Applying these same principles to a 21st-century method of communication, the NLRB found “no reason why (there should be) a safe harbor for coercive employer interrogations via text messages.”

Conclusion

This decision should not be all that surprising to employers. With the prevalence of text messages among workers and supervisors, it is somewhat surprising that such a decision was not reached several years ago. It serves as a valuable lesson for employers, however, to ensure proper training of managers regarding their conduct during union election campaigns.

Also, managers should treat text messages to employees with caution, recognizing they might be more casual in style but still create a permanent record of communication that can serve as admissible evidence in a legal proceeding. Some employers prohibit their supervisors from texting their workers about company business altogether, which is a policy that others may want to consider adopting to avoid a similar fate.

Rich Meneghello is a partner in the Portland, Ore., office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at (503) 205-8044 or rmeneghello@fisherphillips.com, or follow him on Twitter — @pdxLaborLawyer.

(c) 2017 Rochester Business Journal. To obtain permission to reprint this article, call 585-363-7269 or email madams@bridgetowermedia.com.

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