Announcing Benefit Improvements to Employees Outside the Bargaining Unit

The Seventh Circuit held that an employer can violate Section 8(a)(1) by announcing to eligible voters that it is granting a new benefit to non-unit employees where the employer intends to influence an election. NLRB v. Curwood Inc., No. 03-3972, 2005 WL 295636 (7th Cir. Feb 09, 2005). In Curwood, the union filed an election petition to represent production workers, but not maintenance workers. Later, the employer announced that it was going to improve the maintenance workers’ pensions. The Board found that the employer violated Section 8(a)(1) – which prohibits employers from interfering with employees’ rights to form, join, or assist unions – by making the announcement.

The court recognized that an employer can interfere with employees’ right to join unions, in violation of Section 8(a)(1), by announcing to them that it is improving the benefits of employees outside the proposed unit. The court explained, however, that motive is critical. An employer will violate the Act by making the announcement only if the employer’s purpose is to influence the eligible voters. The court remanded the case to the Board to make a determination about the employer’s motive. Thus, Curwood shows that some 8(a)(1) violations turn upon an employer’s motive.

As a side note, at the oral argument, Judge Easterbrook expressed his disapproval of the holding in NLRB v. Exchange Parts Co., 375 U.S. 405 (1964), that an employer can violate Section 8(a)(1) by granting benefits to employees in the proposed unit for the purpose of influencing the election result:

Easterbrook: Your real problem is that you don't agree with Exchange Parts.
Employer's lawyer: Oh, I actually do.
Easterbrook: You do?
Employer's lawyer: Yes.
Easterbrook: Because I don't. I think it's a stupid decision. If I were you I would be arguing against it and trying to set up a case where I would bet there is a decent chance that the Supreme Court would overrule it. But, no, if you agree with Exhange Parts, that's fine.

Streaming audio of the argument is at:
http://www.ca7.uscourts.gov/farg/arg.fwx?caseno=03-3972&submit=showdkt&yr=03&num=3972