When it comes to an unfair practice allegation asserting an employer’s statement is unlawful, words matter.  And, so does context.  Under NLRB case law, the actual employer statements are evaluated as well as the overall context the words were uttered to determine whether there exists coercion.  Recently, the NLRB addressed an unusual case where an employer needed to determine whether its operations would be disrupted by its employees’ refusal to train temporary contractual employees.  So, in a group meeting, the employer asked the employees whether they would be willing to train the contract employees.  The question was asserted to be unlawful interrogation.  The case provides important guidance to employers about how to go about assessing workplace needs, and avoiding potential disruption to work, when the evaluation may intersect with employee rights.


In Mercedes-Benz U.S. International, Inc., 369 NLRB No. 38 (2020), the employer sought to hire temporary workers to assist with a new product launch.  The employer asked its employees to help train the temporary workers, and a few employees opposed doing so.  In response, a supervisor said to one of the employees that it would “not help or be good for anyone” if the employees refused to train the temporary workers.  Then, at a pre-shift meeting, the supervisor asked a group of 15 to 17 employees if it was true that nobody wanted to train the temporary hires.  The supervisor asked for a show of hands as to whether or not this was true.  Two employees raised their hands, indicating they did not want to train the temporary workers.  The meeting ended and the shift went to work.  Most of the employees trained the temporary workers as requested.

An employee filed a charge alleging (i) that the comment that refusal to train the temporary workers would “not help or be good for anyone” infringed on the employee’s Section 7 rights and was an unlawful threat; and (ii) that the employer engaged in an unlawful group interrogation that restrained, coerced or interfered with the employees’ Section 7 rights under the Act.

NLRB Affirms ALJ’s Dismissal of Both Alleged Unfair Labor Practice Charges

  1. The statement that it would “not help or be good for anyone” was not an unlawful threat that violated the Act

First, the NLRB affirmed the ALJ’s finding that the employer’s comment to the employee that it would “not help or be good for anyone” if the employees failed to train the temporary workers did not violate the Act.  Critical to the ALJ and Board’s finding was that the employer made clear that there would be no adverse consequences if the employee continued to refuse to perform the training, and explicitly said that he did not have to train the workers.  The ALJ reasoned that it is unclear what one would objectively understand the comment to mean, particularly because the comment was made in response to the employee’s statement that the company would be embarrassed by the employees’ lack of support to conduct the training.

Because the comment about training the temporary workers did not necessarily suggest that the employer would retaliate against the employee for refusing to train the temporary workers, it did not interfere with, coerce and restrain the employee in the exercise of his Section 7 rights.

  1. The allegedly illegal “poll” did not violate the Act

The General Counsel’s complaint alleged the supervisor’s question was unlawful group interrogation.  Board precedent is such that an interrogation of employees is not per se unlawful unless, under all the circumstances, the interrogation “reasonably tended to restrain, coerce, or interfere with rights guaranteed by the Act.”  See Rossmore House, 269 NLRB 1176 (1984).

In applying this standard, the Board will consider factors, such as the background, what information is being sought, who the questioner is, and whether or not the questioned employee is an active union supporter.

The Board affirmed the ALJ’s determination here that the question about who would agree to train the temporary workers was not an unlawful interrogation under this standard because there was an actual need for the employer to plan for how to train the incoming temporary workers, and there was no threat of adverse consequences.


While this case does not break new ground, it reaffirms the principle that group questioning or interrogations are not per se unlawful under the Act.  Instead, the Board undertakes a fact-specific inquiry, and that under certain circumstances—as here, where there was a clear need to ascertain the requested information for business purposes—group questioning is permitted.  Although not discussed in this case, it is unclear exactly what right the employees would have had to refuse to train contract workers.  Presumably, although we are not told this specifically, it would have been some sort of collective refusal to train the contract workers.  There is no suggestion that the employees were acting in concert or would have gone on strike over this issue.  Rather, it appears to be an individualized indication that some employees objected to performing the training and might refuse to perform one task: training the temporary employees.  Refusal to perform one task, even if part of concerted activity of multiple employees, likely would not constitute protected activity, and may even have been completely unprotected as a partial strike.

Another important factor for employers to note is common sense, but bears emphasis.  Statements to employees and group questioning may be appropriate and will not infringe on employees’ Section 7 rights, even when related to employees’ terms and conditions of employment, if the employer is careful to avoid making direct or implicit threats of adverse consequences.  In this case, the employer emphasized that there would be no adverse action for declining to train the temporary workers and just needed the information to assess its workplace needs.  Again, it is doubtful any protected activity truly was at stake, and none is referenced in the decision, but even after the ALJ dismissed this case, the General Counsel appealed.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.