Reference to Hiring "Legal Workers" if Strike Ensued Inferred Immigration-related Retaliation, Invalidated Decertification Vote: NLRB | Practical Law

Reference to Hiring "Legal Workers" if Strike Ensued Inferred Immigration-related Retaliation, Invalidated Decertification Vote: NLRB | Practical Law

In Labriola Baking Company, the National Labor Relations Board (NLRB) overruled the recommendation of an NLRB hearing officer and held that non-English-speaking bargaining unit members would reasonably understand their employer's mistranslated comments about hiring legal workers to replace them if they engaged in a predicted strike was a threat that if they did not decertify the union in a pending decertification election the employer would retaliate by reporting them to immigration authorities. The NLRB ordered a new decertification election because the employer's comments constituted objectionable conduct under the National Labor Relations Act (NLRA) that reasonably would have interfered with employees' free choice to support the union and engage in protected union activities such as striking.

Reference to Hiring "Legal Workers" if Strike Ensued Inferred Immigration-related Retaliation, Invalidated Decertification Vote: NLRB

by Practical Law Labor & Employment
Published on 18 Sep 2014 • USA (National/Federal)
In Labriola Baking Company, the National Labor Relations Board (NLRB) overruled the recommendation of an NLRB hearing officer and held that non-English-speaking bargaining unit members would reasonably understand their employer's mistranslated comments about hiring legal workers to replace them if they engaged in a predicted strike was a threat that if they did not decertify the union in a pending decertification election the employer would retaliate by reporting them to immigration authorities. The NLRB ordered a new decertification election because the employer's comments constituted objectionable conduct under the National Labor Relations Act (NLRA) that reasonably would have interfered with employees' free choice to support the union and engage in protected union activities such as striking.
On September 8, 2014, in Labriola Baking Company, the panel (Board) heading the NLRB's judicial and election functions overruled the recommendation of an NLRB hearing officer and held that non-English-speaking bargaining unit members would reasonably understand their employer's mistranslated comments about hiring "legal workers" to replace them if they engaged in a predicted strike was a threat that if they did not decertify the union in a pending decertification election the employer would retaliate by reporting them to immigration authorities. The Board ordered a new decertification election because the employer's comments constituted objectionable conduct under the NLRA that reasonably would have interfered with the employees' free choice to support the union and engage in protected union activities such as striking. (361 N.L.R.B. slip op. 41 (Sept. 8, 2014).)

Background

On September 21, 2011, Teamsters Local 734 was certified as the bargaining representative for a group of bakery sales and delivery drivers. When the parties failed to agree to a collective bargaining agreement after a year, an employee petitioned the NLRB for an election to decertify the union as those employees' representative. One week before the March 14, 2013 election, the employer held a meeting in which Vice President and COO, Robert Burch, spoke to 25 employees about the election. Since about 80% of the drivers were Spanish-speaking, the employer had Payroll Administrator, Manuel Rojas, translate Burch's message into Spanish. Burch's scripted message in English said, in part:
"If you chose Union Representation, we believe the union will push you toward a strike. Should this occurs [sic], we will exercise our legal right to hire replacement workers for the drivers who strike."
Bargaining unit employees testified that Rojas's translation slightly changed Burch's message to say that the employer would replace striking workers with "legal workers" or a "legal workforce." The employer did not attempt to clarify Rojas's translation.
After the employees voted to decertify the union (20 to 16 with four non-determinative, uncounted challenged ballots), the union filed objections, claiming in part that the employer's speech included:
  • A threat (through Rojas's translation about hiring "a legal workforce") that it would report employees to immigration authorities if they exercised Section 7 rights to:
    • support the union; or
    • engage in a strike.
  • A message that collective bargaining would be futile.
The union did not allege that the English component of the employer's speech was an objectionable threat.
The hearing officer recommended that the Board overrule the union's objections and certify the election results (decertifying the union). The officer concluded that the union failed to meet its burden of showing that Rojas's words were objectionable because they did not expressly state or imply a threat that the employer would report to immigration those employees who supported the union or went on strike. The hearing officer also recommended that the Board overrule the futility objection as unsupported. The union excepted to the hearing officer's findings.

Outcome

The five member panel of the Board (Chairman Pearce and Members Hirozawa, Johnson, Miscimarra and Schiffer) unanimously affirmed the hearing officer's conclusion that the futility objection be overruled.
A three-member Board majority, (Chairman Pearce and Members Hirozawa and Schiffer):
  • Sustained the union's exception that Rojas's translated statement was objectionable.
  • As a matter of first impression, determined that an employer can infer a retaliatory threat regarding the immigration statuses of non-English-speaking employees by using the terms "legal workers" and "legal workforce" when referring to actions the employer might take if the employees engaged in predicted union activity such as striking and preliminarily maintaining support for the union in an upcoming decertification election.
  • Ordered a new election, setting aside the challenged March 2013 election.
The Board majority noted that:
  • The hearing officer:
    • analyzed the union's objections too narrowly and literally by considering only whether the employer expressly or impliedly threatened to report employees to immigration authorities; and
    • failed to recognize the threat of adverse consequences that Rojas's words would have on non-English speaking employees, regardless of their immigration status.
  • The language in the union's objection did not preclude the Board from considering whether Rojas's statement that the employer would hire "legal workers" or a "legal workforce" created a more general retaliatory threat to "take action" regarding the legal status of employees. That issue, although not raised in the union's objections was "sufficiently related" to the filed objection.
  • The employer was responsible for Rojas's translation of Burch's statements (API Indus., 314 N.L.R.B. 706, 706 n.1 (1994)).
  • The Board has never before considered the likely impact of using the phrase "legal worker" in a pre-eleciton speech to employees.
  • Board and court precedent instruct that an employer's alleged threats regarding the immigration status of its employees warrant careful scrutiny (Viracon, Inc., 256 N.L.R.B. 245 (1981)).
  • While an employer is obligated to determine the legal status of its employees, it is objectionable for an employer to threaten an employee that his engagement in protected activity will lead to immigration-related problems.
  • The Board uses a reasonable employee standard to examine whether an employer's statements tend to interfere with employees' free choice and are therefore objectionable (Lancaster Care Ctr., L.L.C., 338 N.L.R.B. 671, 672 (2002)). Under that standard, employees are not required to find a legitimate interpretation for employer statements.
  • The Board can set aside an election if an employer's objectionable conduct interferes with employees' freedom of choice (Taylor Wharton Div., 336 N.L.R.B. 157, 158 (2001)).
The majority held that:
  • The employer's speech was only marginally lawful because it suggested that the union would likely push employees to strike and put their employment at risk because they could be replaced.
  • In the context of the employer discussing its predicted response (replacing economic strikers with replacement workers) to what the majority found (despite the hearing officer's contrary findings) were suggestions that a union strike was inevitable, Rojas's utterance of the terms "legal workers" and "legal workforce" was objectionable and interfered with bargaining unit employees' freedom of choice because:
    • a reasonable employee could perceive the statements to mean that the employer would use immigration status to take action against striking employees;
    • the statement was highly coercive; and
    • the statement was widely disseminated, as it was made to a large captive audience just before a close election.
  • Setting aside the election results ensures the public's confidence in the Board's willingness to protect all individuals in the work force, including those facing immigration-related threats.
  • When analyzing whether an employer's statement is an objectionable retaliatory threat, employers should not be granted extra leeway in addressing non-English speaking workers.
Members Miscimarra and Johnson, in dissent, argued that the record did not reasonably support a finding of objectionable conduct, because:
  • Nothing in the record suggested that any bargaining unit employees had immigration-related problems or concerns. The majority erred by presuming that a largely Spanish-speaking workforce necessarily would.
  • There was no evidence that the employer made statements about the potential unlawful immigration status or knew that any of its employees might have an unlawful status.
  • The majority erred by finding that lawful predictive statements about strikes and the employer's likely responses if the union struck, to which the union did not object, gave a coercive context for Rojas's statement.
  • The majority's finding failed to give proper weight to the following principles regarding the burden of proof:
    • NLRB elections are not set aside lightly and the burden on the party challenging the election is heavy;
    • the union as the party seeking to overturn an election had the burden of proving that objectionable conduct reasonably tended to interfere with election results by limiting employees' free choice; and
    • substantial evidence must support the Board's findings of fact, especially when overruling the findings of the hearing officer who received the record evidence (29 U.S.C. § 160(e)).
    (Quest Int'l, 338 N.L.R.B. 856, 857 (2003).)
  • Employers and employees are required to comply with legal immigration requirements and without more nothing in the NLRA makes it unlawful to mention these requirements.
  • The Spanish-speaking interpreter at the hearing confused the same linguistic concept regarding legal workers, which has generated controversy in this case.
  • The majority erred by:
    • disregarding that the hearing officer found that Rojas's reference to "legal workers" was made in the context of the action the employer would take (namely who it would hire) if the union went on strike and characterized the statement differently from what the record evidence supported;
    • substituting a different broader objection (that the employer threatened to take some kind of action against employees based on their legal status) for the objection that the union actually filed (that the employer threatened to report employees to immigration authorities). The majority erred by relying on Fiber Industries, where the Board elected to receive objections that were briefed but did not directly match the language in the party's objections document, to unilaterally expand the nature and scope of the objection it was considering (267 N.L.R.B. 840, 840 n.2 (1983)); and
    • reaching the paradoxical conclusion that, when in the presence of non-English-speaking employees, an employer violates the NLRA or engages in objectionable conduct by making any reference to proper compliance with the law requiring work authorization. An employer mentioning its intention to legally comply with immigration requirements without more cannot reasonably be found to violate the law.

Practical Implications

In Labriola Baking Company, the Board majority overruled the recommendation of an NLRB hearing officer and found a translated comment regarding the potential hire of "legal workers" to replace striking employees objectionable because it could be inferred by non-English-speaking employees as a retaliatory threat based on their legal status. As the dissent noted, the majority unilaterally changed the objection than what was posed by the union. The majority held that an employer mentioning its intention to legally comply with immigration requirements is in violation of the NLRA, despite no evidence that the employees saw or had reason to see the comment as a threat.
In light of this decision, employers must tread lightly when, or consider avoiding entirely, using the terms "legal workers" or "legal workforce" when discussing with non-English speakers the nuances of employers' rights under the NLRA to permanently replace economic strikers (see Practice Note, Strikes under the National Labor Relations Act: Continuing Business Operations during ULP Strikes). Further, this case provides more reasons for employers to ensure they provide accurate (and perhaps well-documented) translations of pre-election speeches to non-English-speaking employees when commenting on legal rights in hypothetical situations or making predictions about prospective union actions and employer responses.