Retaliation for Union Activity in Minnesota

What law protects union organizing at a Minnesota workplace?

Federal law governs most private Minnesota employers. Section 7 of the NLRA gives employees the right to organize, and the NLRB enforces it. Minnesota’s Labor Relations Act gives the same right to employees of private employers below the NLRB’s jurisdictional standards, and where the NLRA applies, Minnesota law yields to it.

Section 7, 29 U.S.C. § 157, provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employees also “have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment,” so the same law protects employees who oppose the union. The right does not depend on a union already being in place, which is why it also protects concerted activity by non-union employees.

The NLRB’s jurisdictional standards reach a retail business with a gross annual volume of $500,000 or more and a non-retail business with at least $50,000 a year in goods or services bought from or sold to other states. Special categories have their own minimums; for example, “Hospitals, medical and dental offices, social services organizations, child care centers and residential care centers with a gross annual volume of at least $250,000 are under NLRB jurisdiction.” The agency describes its reach as covering “the great majority of non-government employers with a workplace in the United States, including non-profits, employee-owned businesses, labor organizations, non-union businesses”. The same page lists among the employers “excluded from NLRB jurisdiction by statute or regulation” “Employers subject to the Railway Labor Act, such as interstate railroads and airlines,” and states that “The Board will not assert jurisdiction over employees of a religious organization who are involved in effectuating the religious purpose of the organization, such as teachers in church-operated schools.”

For private employers below those standards, Minn. Stat. § 179.10, subd. 1, provides that “Employees shall have the right of self-organization and the right to form, join, or assist labor organizations,” along with the right to engage in “lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The state act has its own exclusions: under Minn. Stat. § 179.01, subd. 3, “Employer” “does not include the state, or any political or governmental subdivision thereof, nor any person subject to the Federal Railway Labor Act,” and under subdivision 4, “Employee” “does not include any individuals employed in agricultural labor.” Where the federal statute applies, state rules give way. The U.S. Supreme Court held in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), a case about union picketing, that “When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” The Minnesota Supreme Court applied federal preemption to the state labor statute itself in Midwest Motor Express, Inc. v. International Brotherhood of Teamsters, Local 120, 512 N.W.2d 881 (Minn. 1994), holding the state ban on permanent striker replacements “is preempted by federal law.”

What makes a firing during a union campaign unlawful?

A firing is unlawful under the NLRA when union activity was a motivating factor in the decision. It does not matter that the employee was at will or that some other reason also existed. The employer violates the Act unless it proves it would have made the same decision without the union activity.

Minnesota’s default is at-will employment: in Dukowitz v. Hannon Security Services, 841 N.W.2d 147 (Minn. 2014), the Minnesota Supreme Court stated that “In Minnesota, the employer-employee relationship is generally at-will, which means that an employer may discharge an employee for “any reason or no reason””. A handbook can change that default: in Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983), the court concluded “that personnel handbook provisions, if they meet the requirements for formation of a unilateral contract, may become enforceable as part of the original employment contract.” Federal labor law is one of the statutory limits on that default (more on firing an at-will employee generally). Under 29 U.S.C. § 158(a), it is an unfair labor practice for an employer:

• Section 8(a)(1): “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;”
• Section 8(a)(3): “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization”
• Section 8(a)(4): “to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter;”

Section 8(a)(4) matters after the first charge is filed. An employee who files a charge or testifies has a second protected act, so discipline after that point draws scrutiny on two grounds.

The Supreme Court described the motive test in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983): “if the employer fires an employee for having engaged in union activities and has no other basis for the discharge, or if the reasons that he proffers are pretextual, the employer commits an unfair labor practice.” The Board’s position, which the Court accepted, is that a violation exists when “the employee’s protected conduct was a substantial or motivating factor in the adverse action.” For private employers below the NLRB’s jurisdictional standards, Minn. Stat. § 179.12, paragraph (a), clause (3), makes it an unfair labor practice “to encourage or discourage membership in a labor organization by discrimination in regard to hire or tenure of employment or any terms or conditions of employment,” and clause (4) bars discharge because an employee “has signed or filed an affidavit, petition, or complaint or given information or testimony under this chapter.”

How does an employer prove it would have fired the employee anyway?

Once union activity is shown to be a motivating factor, the employer carries the burden of proving, by a preponderance of the evidence, that it would have fired the employee even without the union activity. The proof is the employer’s own record: consistent rules, consistent discipline, and a reason that existed before the campaign.

In Transportation Management, the Supreme Court upheld the NLRB’s Wright Line rule, under which “the employer, even if it failed to meet or neutralize the General Counsel’s showing, could avoid the finding that it violated the statute by demonstrating by a preponderance of the evidence that the worker would have been fired even if he had not been involved with the union.” The Court explained why the employer bears that burden: “It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing.”

The facts of the case show how an employer loses that defense. A bus driver began talking with coworkers about joining the Teamsters and distributing authorization cards. His supervisor called him two-faced and promised to get even, and the driver was fired days later for leaving his keys in the bus and taking unauthorized breaks. The administrative law judge found that the supervisor did not know about the keys practice until after he had decided to fire the driver, so that reason could not have caused the decision. The Court held the Board justified in finding the driver would not have been fired without the union activity, pointing to these facts:

• “At least two of the transgressions that purportedly would have in any event prompted Santillo’s discharge were commonplace, and yet no transgressor had ever before received any kind of discipline.”
• “the employer departed from its usual practice in dealing with rules infractions,” which the administrative law judge described as issuing three written warnings before discharging a driver.
• The decision-maker “was obviously upset with Santillo for engaging in such protected activity.”

Each of those facts is something an employer controls before the decision. Section 10(c) of the NLRA also states that no Board order shall require reinstatement or back pay “if such individual was suspended or discharged for cause,” but the Court in Transportation Management explained that this proviso was not meant to apply where both legitimate and illegitimate causes contributed to the discharge. The “for cause” language does not replace the same-decision proof.

What can managers say about a union during an organizing campaign?

You may tell employees what you think of unionization and of a particular union, as long as the message contains no threat of reprisal or force and no promise of benefit. In Minnesota, you may not penalize, or threaten to penalize, an employee for skipping a meeting held to share your opinion about unionizing.

29 U.S.C. § 158(c) provides that “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Supreme Court explained that “an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.”” Predictions are narrower: “the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization.” The Court also noted the employees’ “economic dependence” on the employer and their tendency “to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.” A supervisor’s offhand comment is heard as the company’s position.

Minnesota adds a rule about meetings. Minn. Stat. § 181.531, subd. 1, provides that an employer “must not discharge, discipline, or otherwise penalize or threaten to discharge, discipline, or otherwise penalize or take any adverse employment action against an employee” “because the employee declines to attend or participate in an employer-sponsored meeting or declines to receive or listen to communications” from the employer “if the meeting or communication is to communicate the opinion of the employer about religious or political matters,” or “as a means of inducing an employee to attend or participate in meetings.” Subdivision 5 defines “political matters” to include “the decision to join or support any political party or political, civic, community, fraternal, or labor organization.” Under subdivision 4, the statute does not limit meetings “so long as attendance is wholly voluntary,” or required attendance at meetings “necessary for the employees to perform their lawfully required job duties.” Subdivision 3 requires covered employers to “post and keep posted” the state’s notice of these rights “in a place where employee notices are customarily located within the workplace”; see required workplace posters.

Under the NLRA, the limits reach beyond speech: in Gissel, the Supreme Court recounted the Board’s findings that employers violated § 8(a)(1) “for coercively interrogating employees about Union activities” and for “creating the appearance of surveillance.” For private employers below the NLRB’s jurisdictional standards, Minn. Stat. § 179.12, paragraph (a), clause (5), makes it an unfair labor practice “to spy directly or through agents or any other persons upon activities of employees or their representatives in the exercise of their legal rights.” For the full sequence of a campaign response, see responding to a unionization campaign.

Who counts as a protected employee under the NLRA?

The NLRA protects “employees,” and its definition leaves out supervisors, independent contractors, agricultural laborers, and a few other groups. Whether a person is a supervisor depends on the authority the person actually holds, not the job title.

29 U.S.C. § 152(3) excludes from the definition of employee, among others, “any individual employed as an agricultural laborer,” “any individual having the status of an independent contractor, or any individual employed as a supervisor.” Section 152(11) defines a supervisor as an individual with authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

Two practical points follow from that text. First, a lead, coordinator, or shift supervisor title settles nothing; the test turns on whether the person exercises one of the listed powers with independent judgment. Second, the exclusion runs only to the NLRA’s definition. A supervisor who reports a legal violation or opposes discrimination can still be protected by the Minnesota statutes in the next section, each of which uses its own definitions.

What Minnesota claims can ride along with a union retaliation charge?

A firing challenged at the NLRB can also be challenged in state court when it rests on an act a Minnesota statute protects on its own terms: a wage disclosure, a good-faith report of a legal violation, opposition to discrimination, or the use of sick and safe time. Each statute has its own remedies.

• Wage discussion. Under Minn. Stat. § 181.172, paragraph (a), an employer shall not “take any adverse employment action against an employee for disclosing the employee’s own wages or discussing another employee’s wages which have been disclosed voluntarily,” and shall not “require nondisclosure by an employee of his or her wages as a condition of employment.” Paragraph (b) states that the section does not “diminish any existing rights under the National Labor Relations Act under United States Code, title 29.” Paragraph (e) lets the employee sue for reinstatement and back pay.
• Reports of legal violations. Minn. Stat. § 181.932, subd. 1, bars discharge because “the employee, or a person acting on behalf of an employee, in good faith, reports a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.” A safety or wage complaint raised during a campaign can qualify. Subdivision 3 states that the statute “does not permit an employee to make statements or disclosures knowing that they are false or that they are in reckless disregard of the truth.” The statute reaches any employer “having one or more employees in Minnesota” (Minn. Stat. § 181.931, subd. 3), and under Minn. Stat. § 181.935, paragraph (a), the employee may recover “any and all damages recoverable at law, together with costs and disbursements, including reasonable attorney’s fees.”
• Opposing discrimination. Under Minn. Stat. § 363A.15, the Minnesota Human Rights Act bars reprisal against a person who “opposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter,” and “A reprisal includes, but is not limited to, any form of intimidation, retaliation, or harassment.”
• Sick and safe time. Minn. Stat. § 181.9447, subd. 6, bars retaliation “because the person has exercised or attempted to exercise rights protected under this act,” including requesting or using earned sick and safe time. The enforcement section for earned sick and safe time is Minn. Stat. § 177.50.

The practical effect is that a termination decision touching one of these protected acts may be judged in more than one forum. For the elements of each state claim, see Minnesota’s retaliation statutes.

What remedies can the NLRB order for an unlawful firing?

If the NLRB finds an unlawful firing, it orders the employer to stop the conduct and can order reinstatement with back pay. After issuing a complaint, it can seek a court injunction while the case is pending, and unfair labor practices that made a fair election unlikely or undermined a union’s majority can support an order to bargain with the union.

Under 29 U.S.C. § 160(c), the Board issues an order requiring the employer to cease and desist and “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter.” Section 160(j) lets the Board, after issuing a complaint, petition a federal district court “for appropriate temporary relief or restraining order.” Charges from Minnesota go to the NLRB’s Regional Office 18 in Minneapolis, which investigates them and decides whether a complaint issues.

The bargaining order is the remedy Gissel addressed. In that case, the Supreme Court upheld the Board’s authority to order an employer to bargain where it “has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union’s majority and caused an election to be set aside,” and to do so “without first requiring the union to show that it has been able to maintain its majority status.” The Court added that there is “a third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order.” The Court stressed that the Board’s authority to issue such an order on a lesser showing of misconduct is appropriate “where there is also a showing that at one point the union had a majority.” Firing a visible organizer is the kind of act employees notice, which is why a retaliation finding can cost the employer the election itself, not only the back pay.

How should discipline work once organizing starts?

Discipline after organizing starts should follow the same rules, the same steps, and the same comparisons to other employees as before the campaign. The decision should rest on facts documented before the decision, made by someone who can explain it without reference to the union.

The Transportation Management facts translate into a checklist for a Minnesota employer considering discipline of an employee known to support the union:

1. Compare. Identify how other employees were treated for the same conduct in the past. Discipline for conduct you have tolerated in others is the fact pattern the Court called “commonplace” with no prior discipline.
2. Follow your own steps. If your handbook or practice calls for warnings before discharge, give them. The employer in Transportation Management lost in part because it “departed from its usual practice.”
3. Fix the record first. Document the performance or conduct problem and the reason for the decision before the decision is made, as a reason found afterward cannot have caused it. See firing without documentation.
4. Check who decided and what they said. A decision-maker who has spoken against the employee’s union activity weakens the same-decision defense. A neutral reviewer who confirms the facts through a workplace investigation gives the decision its footing.
5. State one reason, truthfully. If the employee asks in writing, Minn. Stat. § 181.933, subd. 1, requires a written answer: “Within ten working days following receipt of such request, an employer shall inform the terminated employee in writing of the truthful reason for the termination.” A written reason that differs from what managers said elsewhere is evidence of pretext. Check the current text of § 181.933 for the request and response windows before relying on them.

None of these steps prevents you from enforcing legitimate standards during a campaign. They make the employer’s reason provable, which is what the same-decision defense requires.

A firing during a union campaign usually turns on one question: whether you can prove, from records made before the decision, that you would have made the same decision without the union activity. Consistent rules, documented reasons, and campaign communications free of threats and promises are the record that question turns on. If you would like a second set of eyes on a planned termination, a campaign communication, or an NLRB charge, email Aaron Hall at aaron@aaronhall.com with a brief description of the situation. More on how employers handle these matters is on the Minnesota employment law page.