Olms interpretative Manual

EXPENDITURE TO INTERFERE WITH-RESTRAINOR COERCE EMPLOYEES

255.001LMRDA,SECTION203(a)(3)

. . . any expenditure, during the fiscal year, where an object thereof, directly or indirectly, is tointerfere with, restrain, or coerce employees in the exercise of the right to organize and bargaincollectivelythroughrepresentativesoftheirownchoosing.

LMRDA,SECTION203(g)

The term “interfere with, restrain, or coerce” as used in this section means interference,restraint, and coercion which, if done with respect to the exercise of rights guaranteed in section7 of the National Labor Relations Act, as amended, would, under section 8 (a) of such Act,constituteanunfair labor practice.

255.002See29CFR 405.7

255.005COST OFLETTER CONTAINING THREATS

An employer in the middle of a representation struggle between two unions, attempted tostate its position by mailing a letter to its employees.The letter urged employees to get rid ofbothunionsandineffectpromisedthem“a better joband better workingconditions.”

The NLRB found that in context with the rest of the letter this constituted a promise of abenefit.The Board also found that other parts of the letter “constitute a threat to close up theplant and move to another town where the company could operate without union trouble.”TheBoard found that by mailing this letter to its employees the employer had interfered with,restrained or coerced the employees in the exercise of rights guaranteed in section 7 of the LaborManagement Relations Act, 1947, as amended, and had engaged in unfair labor practices withinthemeaning of section 8(a)(1) of that Act.
Since the object of the letter in question was “to interfere with, restrain, or coerce employeesin the exercise of the right to organize and bargain collectively through representatives of theirown choosing,” and since the cost of preparing and mailing the letter in question was anexpenditure to further this objective, a report is required from the employer pursuant to section203(a) (3) of LMRDA.

255.100“INTERFERENCE”WITHREPRESENTATIONELECTIONNOTNECESSARILYUNFAIRLABORPRACTICE

An important distinction should be noted insofar as the work “interference” is concerned vis-à-vis the Labor-Management Relations Act, 1947 (Taft-Hartley).There are certain situationswhere particular statements or activities of an employer in connection with a representationelection being held in his plant under the aegis of the NLRB may result in the election being setaside for “interference” or “any conduct which prevents free and untrammeled choice of abargaining representative” without the activity amounting to an unfair labor practice within themeaning of section 8(a) (1) of the Taft-Hartley Act.That section provides; “It shall be an unfairlabor practice for an employer (1) to interfere with, restrain, or coerce employees in the exerciseof the rights guaranteed in section 7.”Note the use of the word “interfere” in the extract of thestatute.

Inconnectionwiththe above,theNationalLaborRelationsBoardinthecaseofInre

MetropolitanLifeInsuranceCompany,1950WL9327,**4,90NLRB935,26LRRM1294,
(Jul.12,1950)stated:

Section 8(c) prevents the Board from treating as evidence of unfair labor practices anyexpression of views, argument, or opinion which contains no threat of reprisal or force orpromise of benefit.Section 8(c) does not, however, prevent the Board from finding in arepresentation case that an expression of views, whether or not protected by section 8(c), has,in fact, interfered with the employees’ freedom of choice in an election, so as to require thatsuchelection be set aside.

In short, where the “interference” is related solely to the conduct of the election and does notconstitute an “unfair labor practice” under precedents set by the courts or the National LaborRelations Board, or alternatively the Board finds that the activity in question does not constitutean unfair labor practice, the activities or speeches or statements by the employer will beconsidered to have been made within his “free speech” rights set forth in section 8(c) of the Taft-Hartley Act insofar as section 8(a)(1) of that Act is concerned.Under such circumstances, noreport is required under section 203(a)(3) of the LMRDA for expenditures involving that type of“inference”havinginmindsection203(f) and (g) of theLMRDA of 1959.

An example involves the decision of the National Labor Relations Boardv. Plochman andHarrison--CherryLaneFoods,Inc.,1962 WL16119,140NLRB130, 51LRRM 1558(Dec. 13,1962).The facts werethe following:

The day before a representation election, the employer called together the employees andpresented them with a showing of the movie “And Women Must Weep.”The union lost theelection by a very close margin and filed objections to the results and conduct of the electionalleging that the showing of the movie “And Women Must Weep” amounted tomisrepresentationand“interference”withtheemployees’rightstoanobjectiveelection.

The NLRB overruled its Regional Director and held that the showing of that emotional anti-union movie immediately prior to the date of the election was sufficient “interference” with theobjectivity of the election so as to justify the election being set aside and the holding of anewelection.The Board made nofinding at all that the showing of the movie constituted“interference” of the type referred to in section 8(a)(1) of Taft-Hartley (i.e. unfair labor practice).Consequently, the Department holds that no report is required in this case, as the employer wasexercising his “free speech” rights set forth in section 8(c) of the Taft-Hartley Act so far assection 8(a)(1) of that Act is concerned having in mind the language of section 203(f) and (g) ofLMRDA.

(TechnicalRevisions:Dec.2016)

255.110ACTIVITIESWHICH“INTERFERE”WITHREPRESENTATIONELECTIONMAYALSOBE UNFAIR LABOR PRACTICES

In the case of the National Labor Relations Boardv. Trades Winds Motor Hotel &Restaurant, 1963 WL 16333, 140 NLRB 567, 52 LRRM 1063 (Jan. 9, 1963), the National LaborRelationsBoard, through itsRegional Directorfoundthattheemployerthroughitssupervisors,

1. 
   interrogatedcertain employeesconcerningtheirunionmembership and anticipatedvote, and
   
2. 
   threatened certain employees that if the union won the election it would close down its plant.These acts took place in connection with a representation election involving the employees of theTrade Winds Hotel.The NLRB set aside the election and ordered a new one on the basis that theactsinquestionconstituted“improperinterferencewiththeelection.”
   

Though the union did not charge the employer with an unfair labor practice in this case,the type of conduct which the Board found the employer to be guilty of, has, under prior courtrulings and board decisions, been held to be an unfair labor practice.SeeNational LaborRelations Boardv. Armstrong Tire and Rubber Co., 228 F.2d 159, 161, 37 LRRM 2244 (5th Cir.1955);W.W.Chambers Co.,Inc., 1959WL 14834,125 NLRB78,45 LRRM1176(Dec.8,
1959),aff’dpercuriam,NationalLaborRelationsBoardv.W.W.ChambersCo.,Inc.,279F.2d817(D.C.Cir.1960).
TheDepartmentof Laborconcluded thatreportswere requiredfromtheemployers pursuantto section 203(a)(3) of the LMRDA, since the foregoing acts constituted “interference,”“restraint”and “coercion”undersection203(g).

(TechnicalRevisions:Dec.2016)

255.120BOARD’S“JURISDICTIONALYARDSTICK”NOTGERMANE

Although theNationalLaborRelationsBoardcouldexerciseitspowerstoenforcetheLMRA in all cases involving enterprises whose operations affect commerce, the Board, in itsdiscretion, limits the exercise of its powers to cases involving enterprise whose effect oncommerce is substantial.The board’s requirements for exercising its power or jurisdiction arecalled “jurisdictional standards.”These standards are based on the early amount of businessdone by the enterprise, or on the yearly amount of its sales or of its purchases.They are stated intermsof total dollar volumeof business and aredifferent for different kindsof enterprises.

However, insofar as the LMRDA, is concerned, a report may be required pursuant to section203(a)(3) from an employer who comes within the definition in section 3(e) and who hasundertakenactivities which amount to unfair laborpracticeswithinthemeaning of section 8(a)
(1) of LMRA, provided there were expenditures in connection therewith, notwithstanding thefact that the Regional Director of a given NLRB region could not entertain a union “charge” ofsuchunfairlaborpracticeactivities due to the Board’s “jurisdictional yardstick.”

(Revised:Dec.2016)

255.300EMPLOYERASSISTANCETO“GRIEVANCECOMMITTEE”

Where in connection with an organizational drive run by a national union to organize theemployees of a particular employer, there is established a “Grievance Committee” to which theemployer furnishes assistance, financially or otherwise, and with which he undertakes tonegotiate, payments in connection with the assistance constitute payments which interfere withemployees’ right to organize and bargain collectively through representatives of their ownchoosingand consequentlymust be reportedbythe employerunder section203(a)(3)oftheAct.

“FREESPEECH”RIGHTOFEMPLOYER

255.501LMRDA,SECTION203(f)

Nothingcontainedin thissectionshallbeconstruedas anamendment to,ormodification oftherights protected by,section8(c) of theNational Labor Relations Act,as amended

255.502See29CFR 405.7

255.505REPORTABILITYOFFREESPEECHACTIVITIES

ItisstatedinPartIIIoftheinstructionsforthe employerFormLM-10 reporton page2for

use in preparing the employer report that, while section 203 of the Act does not amend or modifythe rights protected by section 8(c) of the National Labor Relations Act, as amended, the Actcontains no provisions exempting the activities protected by that section from the reportingrequirements.Accordingly, activities covered by section 203 must be reported since such reportsarerequiredbylaw,regardlessofwhethertheyareprotectedbythefreespeechprovisions.
While these instructions pertain exclusively to employer reports, the same principle, so far as thefreespeechprovisionsareconcerned,isapplicabletoreportsrequiredofconsultants.

(TechnicalRevisions:Dec.2016)

255.600NEWSPAPER ADSOF EMPLOYERS’VIEWS

1. 
   Where an employer, in connection with a labor dispute, places an ad under his own namein a newspaper in which he sets forth his viewpoints on the dispute without threat of reprisal, orforce, or promise of benefit, and the ad may objectively and fairly be stated not to constitute anyinterference with, restraint of or coercion by the employer in connection with the employees’rights to bargain collectively through representatives of their own choosing, no report undersection 203(a) of the Act is required by virtue of section 203(f) inasmuch as the placing of suchan ad constitutes the exercise of the employer’s “free speech” rights under section 8(c) of theNationalLabor Relations Act of 1947, as amended.
   

2. 
   On the other hand, where the employer places an ad in a newspaper and the substance ofthat ad amounts to “interference with, restraint, or coercion” in connection with the employees’rights to bargain collectively through representatives of their own choosing, a report is requiredunder section 203(a) (3) of the Act with regard to the expenditures for the advertisement. Theprotected “free speech” rights under section 203(f) of the LMRDA (section 8(c) of LMRA) arenot applicable in such a situation since threats, etc. cetera, do not constitute “free speech.”Forexample, if the ad contains a statement as direct and blunt as the following, “If the union winsthe representation election, you have my solemn promise that I will close this plant and move ittoanother State”; it would normally be considered a threat.
   

3. 
   Where a labor relations “consultant” or other person, pursuant to an agreement with theemployer prepares the copy for the ad referred to in (1) above, no report is required from the“consultant” under section 203(b) or from the employer since the “consultant” is deemed to begiving“advice”totheemployerwithintheexceptionsetforthinsection203(c)oftheLMRDA.
   

4. 
   Where a “consultant” or other person prepares the same copy, referred to in (1) above foran employer and that ad is place in a newspaper by the “consultant” or other person and does notappear as being the statement of the employer, as for example, the ad appears under the name ofa fictitiouscommittee entitled “Citizen Committee for Industrial Peace in our Town,” then the admay be fairly considered to constitute persuasion of the employees of the employer by theconsultant (and not merely furnishing of advice to the employer) as to matters involving theirrights to bargain collectively through representatives of their own choosing.In that case, reportsare required from the “consultant” or other person pursuant to section 203(b)(1) and from theemployer with regard to his agreement with the “consultant” or such other person pursuant tosection 203(a)(4).If the employer makes any expenditure under the latter agreement, a report isrequiredfrom his pursuant to section203(a) (5)of the Act.
   

5. 
   If the material in the ad referred to in (4) above constitutes “interference with, restraint, orcoercion,” then the employer is also required to file a report pursuant to section 203(a)(3) withregardtoanyexpenditureshemakesinconnection withthat advertisement.
   
6. 
   The“consultant”mustalsofilepursuanttosection203(b)(1)inthesituationoutlinedin
   

(5)abovesince“interferencewith,restraint,orcoercion,” amounts topersuasion,albeitillegal.

7. 
   In the absence of special factors the publisher of the newspaper will not normally berequiredtofileareportwithregardtohishavingpublishedanyoftheadsreferredtoabove.