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NLRB Finds Head Of School’s Email About Employee Union Was Not Violation Of Employee’s Right To Unionize
Employees at the Blue School, a private 2nd through 8th grade school located in New York City, conducted an election to create an employee union for Blue School faculty and staff. The election was conducted between August 16 and September 3, 2021, but was postponed pending resolution of challenged ballots.
During this time, the Head of School sent several school-wide emails regarding the election process and the School’s concerns about how the election occurred. In particular, on March 20, 2022, the day before the ballot count was set to resume, the Head of School sent an email to all employees, where he explained the remaining steps of the election process, reiterated the School’s concerns regarding the election, and stated how it would likely respond in the event that the Union prevailed. The Head of School predicted that the count would go in favor of a combined union that represented both faculty and staff.
The email then shared the Head of School’s reservations about a potential partnership with the Local 2110 Technical Office Professional Union Department of the United Autoworkers Union, and the election process in general. As a result, if the election was certified, he said the School would decline to recognize the union and would appeal the outcome. The email also said that faculty employment offers had just gone out, which reflected a 5% salary increase, renewed contributions to 401k plans, and in some specific instances, more substantial increases to ensure teachers with similar experience and credentials were compensated equitably.
The tally of ballots showed that the majority of employees voted in favor of representation, and in April 2022, the National Labor Relations Board (NLRB or Board) certified the Union. Thereafter, the School refused to recognize and bargain with the Union in order to challenge the Board’s certification.
The Administrative Law Judge found that the Head of School’s statement in the email that the School would decline to recognize the union if asked to do so and would appeal the outcome indicated an intent to not bargain with the Union and was a threat. It conveyed a message to employees that selecting a union would be futile, as the School would not bargain with the union if the union won the election. The School appealed.
To determine whether a statement is an unlawful coercive threat under the National Labor Relations Act section 8(a)(1), the statement must be assessed in the context in which is made and on whether it tends to coerce a reasonable employee. An unlawful threat of futility is established when an employer states or implies that it will ensure its nonunion status by unlawful means.
Here, the Board considered that the email was sent long after the employees voted in the election, and therefore could not have influenced how they voted. The Board also considered that the March 20 email did not address potential collective-bargaining negotiations between the parties and suggest that the negotiations would be futile. Instead, the email said that in the event the Union is certified by the Board, the School intended to seek judicial review. The Board concluded that the March 20 email provided a limited and factually accurate explanation of the appeal process and the School’s intent to pursue it. The Board dismissed the allegation against the School.
Blue School, 373 NLRB No. 120.
Note: LCW covered this case . This case illustrates that emails from administrators to employees showing a lack of support for potential unionization may be a violation of the National Labor Relations Act. Schools should consider the language and the timing of these types of emails to reduce the risk of an NLRA violation.