7th Cir. Upholds
NLRB Findings re
Secret Recording of
Libertyville Toyota Executive’s
The various and controversial Obama Board rulings have been reported extensively, but employers who lose can appeal to get enforcement denied. This is done with the hope that the courts will refuse to go along with what is deemed the Board’s pro-union agenda. The attempt recently failed in Autonation, Inc. et al. v. National Labor Relations Board, ___ F3d___, Nos. 14-2991 and 14-3361 (7th Cir. September 4, 2015). The court of appeals in Chicago agreed with the Board’s determination that a local automobile dealership illegally handled its campaign against unionization by the Machinists’ Union.
At an August 23, 2011 meeting with employees, Toyota representatives’ remarks violated the Taft-Hartley Act (“Autonation” is a Toyota d/b/a). The court found that the company’s implicit message from an HR representative and an attorney was that it would be futile for the Libertyville facility’s mechanics to organize. Davis, the Autonation lawyer, told the workers to be “very careful” when listening to the union’s “sales pitch”. “In many cases,” he went on, “when you enter these negotiations, if you ever get there, employees tend to lose things. Okay?”
Negotiations, he told them, are a “wide open game of uncertainty” in which “nothing is guaranteed even if you win the election. All right?” When asked if hourly wages would fall below $10.50 if employees voted in the union, the court gave this account of the Toyota representative’s responses:
“It’s possible. … [W]hen I say that we sit down and we start from scratch, we start from scratch. We don’t start with what you guys are making today. Everything goes to zero.” Later still, Davis told the employees about “your brothers and sisters from other dealerships who deal with [union issues] on a daily basis,” describing in particular a unionized workplace at an Orlando AutoNation dealership. There, Davis said, the unionized employees “have been living that nightmare for almost three years now with not one bargaining session, not one contract negotiation.”
Davis did say later in the meeting that if the workers were to unionize, “eventu- ally the bargaining process will begin.” But he promptly threw cold water on that thought by telling the employees that “[t]he bargaining process is—is never automatic” and that the workers “may never see … in your lifetime at the dealership” benefits that they think they “may be entitled to.”
The Board had also determined that the two executives had made implied promises of wage increases to buy off employees, and the court agreed.
A worker wanted to know if it was “possible without voting the union into the dealership that the dealers’ [sic] current pay plan can be evaluated or updated more for progressing technicians whose current pay plan has a low pay ceiling.” The HR representative responded that such a thing was “absolutely possible,” then added, “it’s something we try to do every year,” and that “the first thing we need to do” is to “look at that.” Later, Davis said that “if we’re not being fair or we’re not being competitive to what you guys could get on the open marketplace on your own, I think there would be a definite willingness to consider making ad- justments for those of you who are negatively impacted by that,” adding, “we want a chance to address them [your concerns] before you pay somebody else to address them.”
The Court noted that the attorney, said elsewhere in the meeting that the dealership’s employees would probably not get to negotiate for better pay if they chose to bargain collectively. Yet when an employee asked whether better pay was possible without unionizing, the HR representative’s response was overwhelmingly positive. The Board, found the court, reasonably saw Davis’s subsequent comment (that he and Andrews wanted to address the employees’ concerns about pay “before you pay somebody else”—the “somebody else” clearly referring to the Union) as a direct link between helping the employees and their rejection of the Union. The contrast, the Board thought (and the court agreed), was sharp enough to imply to dealership workers that unionizing or not unionizing could mean the difference in positive consideration of a pay increase.
The court enforced the Board’s finding that Autonation had threatened blacklisting:
Toward the end of the meeting, Davis responded to an employee who asked if un- ionization of the Libertyville dealership would be “something that’s going to follow you through your lifetime if you transfer to another store.” Davis began inauspiciously by telling the workers that “[t]he union will tell me that I’m threatening you by bringing this up. The bottom line is, that’s the reality.” He then said that other employers would likely be suspicious of job applicants who had worked in union shops, and that such employers could “be inclined to pass on you … because of that badge or that scarlet letter” of prior union membership, or even having “gone through” a campaign to enter a workplace that the union loses. The employee followed up by asking if “certain people’s careers may be affected by this.” Davis responded, “Absolutely.”
Much of what the court reviewed in the record was not that far from the core legal principles arising from §8(a)(1) of the Act: employers shall not interfere with, restrain, or coerce workers in exercising their right to engage in protected concerted activity. But the court—which explicitly stated the fact—struggled with the way the Board went about its ruling. And had the facts been slightly different it could have denied enforcement because of a lack of substantial evidence in the record, taken as a whole.
It is unusual for a recording of a campaign meeting to wind up in the records. Can a surreptitious recording be denied admission as evidence? This recording was made before the Illinois statute on eavesdropping was amended, and we do not know how the Board would approach it. But an employer confronted with eavesdropping would almost certainly have to fight it.
The court also enforced the Board’s order as to the reinstatement of a worker, fired in violation of Act.