Rhetoric back and forth between union and employer representatives is nothing new, but employers may have to start watching their words more carefully in light of the Board’s surprising Jan. 31 decision in Regency House of Wallingford (PDF).  After an ALJ ordered rescission of a unilateral wage increase for certain junior employees, the employer tried to convince the union to engage in general bargaining that would allow the increase to remain in place without having to give the same increase to all unit members.  In support of that suggestion, the employer sent several letters to the union’s Vice President (alone), opining that the union’s demand for the rescission was not in the interests of its members, and that the Vice President was only looking out for the senior members. 

The Board held (2-1, Member Hayes did not join in this aspect of the decision) that the employer had violated Section 8(a)(1) by “denigrating” the union in the letters.  The Board brushed off the employer’s argument that its letters were protected by Section 8(c), saying that the letters “contained an implicit threat that employees’ representation by the Union would be futile.” 

One might expect at least that such a violation would depend on communication of this “threat” to the bargaining unit, but it appears that the employer had done nothing to publicize the letters.  To the contrary, it was the union vice president who shared the letters with seven stewards and bargaining committee members, and who testified that she elected to discuss the letters with “an unspecified number of employees.” 

The case also involved a number of more mundane unfair labor practices, and it remains to be seen whether sharp comments to a union vice president would be sufficient, standing alone, to warrant the finding of a violation.  But both the content of the employer’s letters, and the limitation of their communication to a single union official, make this an unusual, and potentially quite troubling, decision.


Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.