Employers can now find themselves liable for unfair labor practice charges for text messages sent to workers during union organizing campaigns after a historic ruling by the nation's top federal arbiter.
The National Labor Relations Board unanimously ruled in RHCG Safety Corp. and Construction & General Building Laborers, Local 79 that a senior manager violated federal labor law after sending aggressive texts to a worker.
"U working for Redhook or u working in the union?" the supervisor said in an exchange with a worker during the union campaign. When the worker, who was not an open union supporter, did not respond, he was subsequently barred from working on company job sites.
"By juxtaposing working for Redhook with working in the Union, [the manager's] text strongly suggested that the two were incompatible," the NLRB said in an opinion issued by Republican Acting Chairman Philip Miscimarra and Democrats Mark Gaston Pearce and Lauren McFerran. "The Respondent offers no reason why the Board should provide a safe harbor for coercive employer interrogations via text messages."
Federal labor law prohibits employers from interrogating, intimidating, or retaliating against workers based upon their preferences in union elections. However, those worker protections covered only verbal communication, including phone calls. The NLRB decision in RHCG Safety Corp. found the text conversation met the standard of an unlawful interrogation, despite objections from the employer that texts are not covered by existing labor law.
Labor lawyers have dubbed the practice "textual harassment." Todd Lyon, an attorney at Fisher Phillips LLC called the decision "inevitable" given the rise in use of text messages. He said that the case is important to highlight for employers because it demonstrates that supervisors and other managers must tread carefully when communicating with workers.
"This was bound to happen," he said. "What this case illustrates is that employers need to be aware of communications between supervisors and workers regardless of the medium. If we communicate to employees verbally that, 'you can't do X,Y, or Z,' then it follows that you can't do so through texts."
He added that he was surprised that it took as long as it did for the issue to come up given the ubiquity of texts and prior NLRB rulings that protected workers' social media activities, but said that the "glacial pace" of labor relations law is a product of guaranteeing certainty for unions and companies during union elections.
"Labor relations is generally behind and often very far behind the current cutting-edge employment law issues," he said. "All parties need to know that they can rely upon [steady] rules, so it is slow, methodical in making changes."
Not every aspect of the RHCG ruling was unanimous. Miscimarra, the NLRB's sole Republican, agreed with his Democratic colleagues that the texts constituted an unfair labor practice, but dissented from the majority on two other aspects of the case involving whether the worker was unlawfully fired and whether the company properly complied with disclosure rules.
Donald Trump nominated former House Oversight Committee counsel Marvin Kaplan to the NLRB on Monday, which would overturn the Democratic majority on the board for the first time since 2013. The White House is also reportedly considering William Emanuel, a member of the conservative Federalist Society, to fill a second vacancy, which would give Republicans control of the board for the first time since 2007.