Monday, February 28, 2005

Analyzing Ambiguous Statements

Section 8(a)(1) prohibits employers from making coercive statements to employees about their union activity. Employers occasionally utter ambiguous statements that have several reasonable interpretations, some coercive and some not. Recently, the Board split over how to analyze these ambiguous statements. Joseph Chevrolet, Inc., 343 NLRB No. 2 (2004).

In Joseph Chevrolet, the employer terminated a shop steward after he misrepresented that he performed some work that he had not. The employer told the discharged employee “your job got fucked up at the bargaining table.” The General Counsel issued a complaint alleging that this statement violated Section 8(a)(1) by linking the employee’s discharge to his union activity.

The Board majority (Members Liebman and Walsh) found that the employer’s statement coercively linked the employee’s discharge to union activity and that it therefore violated Section 8(a)(1). In dissent, Member Schaumber found that the statement was lawful because it was ambiguous and susceptible to noncoercive interpretations. He noted that the collective bargaining agreement expressly authorized the employer to terminate employees for charging a customer for a repair not made. Member Schaumber thought that it was reasonable to interpret the employer’s statement -- that the employee’s “job got fucked up at the bargaining table” -- as communicating that the employee lost his job for committing an offense worthy of discharge under the collective bargaining agreement. Member Schaumber stated that “since the statement’s meaning is ambiguous and allows for lawful interpretations, the General Counsel has not met his burden of establishing by a preponderance of the evidence that making the statement violated Section 8(a)(1) of the Act.” Id. at 4 (emphasis added). Member Schaumber did not deny the existence of a reasonable, coercive interpretation of the employer’s statement.

In response to the dissent, the majority explained that “[t]he test of whether a statement is unlawful is whether the words could reasonably be construed as coercive, whether or not that is the only reasonable construction.” Under this rule, the majority found that the statement violated the Act, even accepting Member Schaumber’s position that the statement was ambiguous and susceptible to a reasonable, noncoercive interpretation.

Member Schaumber espoused the most pro-employer rule of the following three possible alternatives:

1. An ambiguous statement violates Section 8(a)(1) if it has at least one reasonable, coercive interpretation.

2. An ambiguous statement violates Section 8(a)(1) if its most reasonable interpretation is coercive (among competing reasonable interpretations).

3. An ambiguous statement is lawful if it has at least one reasonable, noncoercive interpretation.

I think that the Board majority wisely employed the most pro-General Counsel of these three alternatives. Where multiple reasonable interpretations of an ambiguous statement exist, we cannot be sure that employees will adopt a noncoercive interpretation over a coercive interpretation. Some employees may hear the coercive message. Thus, to ensure that employers do not interfere with Section 7 rights (purposefully or otherwise), the Board is wise to use the pro-General Counsel rule in Joseph Chevrolet.

In advocating rule set forth in Joseph Chevrolet, I emphasize that the remedy for violating Section 8(a)(1) is a cease-and-desist order. In such an order, the Board directs the guilty employer to stop making ambiguous statements that a reasonable employee could interpret as coercive. In other words, the Board tells the employer to be more precise when making its statements: “If you intend to communicate a noncoercive message, do a better job of it.”

One might argue that Joseph Chevrolet rule will chill employers from communicating valuable messages. An employer might hold its tongue instead of making a valuable comment out of fear that the Board might find some reasonable, coercive interpretation of its statement. I find such an argument unpersuasive for several reasons. First, the cease-and-desist order (“stop doing that”) is not much of a deterrent. Thus, if an employer has some valuable message to communicate, it is not likely to hold back for fear of being told to “stop doing that.” Second, the Board is not quick to manufacture coercive interpretations of seemingly valuable employer statements. Third, these kinds of statements are made, of course, by people: people who speak off the cuff and who are likely to be unaware of the Joseph Chevrolet rule. Thus, I highly doubt that the rule will have any significant chilling effect.

On the other hand, a contrary rule (such as the rule that an ambiguous statement is lawful if it is susceptible to a lawful interpretation) creates an opportunity for employers to use ambiguous language to communicate a coercive message. The potential for harm that this rule creates is greater, in my mind, than the potential chilling that might occur under Joseph Chevrolet.

Of course, employers might also be worried that such an 8(a)(1) violation will be used to support a Gissel bargaining order or to infer that a contemporaneous discharge was unlawfully motivated. I suggest that the Board can give appropriate (read “little”) weight to this type of violation when analyzing these types of issues.


At 4:42 PM, Blogger answer-man said...

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