Employer’s Pre-Election Statements May Not Threaten Or Coerce Employees

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Mar 04, 2020

This case arises out of a union campaign to represent health and safety shift specialists (HSS specialists) at an oil and gas facility owned by the employer, Phillips 66.  The complaint alleges that prior to and after an NLRB-conducted election in which the HSS specialists voted for union representation, the employer violated Section 8 of the NLRA.

In November 2011, the union filed a representation petition to include the HSS specialists in an existing statewide bargaining unit.  The employer opposed the petition, arguing that the HSS specialists were supervisory employees.  The Board’s Regional Director rejected that argument and directed an election.  However, the Regional Director did provide that the HSS specialists could permissibly direct and supervise the work of other employees when acting as incident commander.

In January 2012, four days before the election, the employer met with the HSS specialists.  A human resources manager explained that the employer was certain that the HHS specialists’ job duties were supervisory, that it would strip them of these duties if they joined the union, and that without such duties, the employer might not need to maintain the around-the-clock staffing of HSS specialists.  Another management employee, the facility site manager, added that the employer might have to adjust the HSS specialists’ overtime if they joined the union and that the employer would review the HSS specialists’ job duties to see if the employer required around-the-clock staffing rather than an alternative 8-hour daily shift schedule that could minimize overtime.

The union then won the election, and the NLRB certified the union as the exclusive representative of the HSS specialists.

In bargaining the terms and conditions of the HHS specialist classification, the employer took the position that it would be inappropriate for unit employees to perform incident commander duties and that without those duties, there was no need for an HSS specialist to be at the facility at all times.  The employer then proposed to eliminate the HSS specialist classification and create a new health and safety coordinator (HSC) classification with fewer job duties, different work schedules, and lower wages. The union tentatively agreed that the HHS specialist would no longer perform incident commander duties, but otherwise rejected the employer’s other proposals.

The parties continued to bargain until they reached an impasse, at which time the employer presented the union with its final proposal.  The proposal provided transferring two HSS specialists to HSC jobs and demoting the other three to operator jobs.  The union rejected the proposal, and the employer then imposed the terms of its final offer.

The union then filed an unfair practice charge, alleging that the employer threatened adverse changes to HSS specialists’ jobs if they voted for union representation in violation of Section 8 as well as other charges related to the employer’s conduct in bargaining.

The ALJ assigned to the case found that the employer violated Section 8 of the NLRA by threatening adverse changes to the HHS specialists’ jobs if they voted for the union.  The ALJ based this decision on findings that the employer’s human resources manager and site manager threatened the HSS specialists in January 2012.

The NLRB, in reviewing the ALJ decision, rejected some of the rationales for the ALJ’s decision but concluded that the employer’s managers’ statements were, in fact, coercive.

Phillips 66 & United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, Afl-Cio-Clc (Jan. 31, 2020) 369 NLRB No. 13.


Statements made by the employer and its representatives during organizing or negotiations are closely scrutinized when there are allegations of coercion or intimidation. While the employer’s substantive proposals in bargaining, which were consistent with its pre-election statements, were lawful, the pre-election statements themselves were coercive and therefore unlawful.