A Court’s Excellent “TIPS” Primer

By: Cary Schwimmer

Lawyers who conduct union-avoidance training for management always include “TIPS” — the acronym for the four things an employer can’t do to employees when there is pro-union activity going on in the company:

  • INTERROGATE (including soliciting grievances from employees)
  • PROMISE (including impliedly promising to fix what solicited grievances pertain to) and
  • *I add PUNISH as an additional “P”

The 6th Circuit U.S. Court of Appeals recently addressed all these missteps in Charter Communications, Inc. v. National Labor Relations Board, Case Nos. 18-18-1778/1895, (September 25, 2019). The case is an excellent primer on basic union activity labor law and demonstrates how an employer can go very wrong.

The court upheld a National Labor Relations Board (NLRB) order that a Michigan employer, Charter Communications (Charter), repeatedly violated the National Labor Relations Act (NLRA) during a three-month period of pro-union activity. The NLRB’s evidence included the following:

SURVEIL: Employee ‘French’ had a union organizer distribute pro-union flyers (handbilling) at his Charter workplace. The regional director told French’s manager “to pay attention to who’s taking the flyers” and “to take notes if possible.” French’s manager reiterated those instructions to supervisors on site. French’s supervisor asked one employee if he had taken a flyer.

INTERROGATE: Within a day of the distribution, during a management conference call, a regional vice president directed French’s manager to meet with French “because his name had come up as being a possible instigator for the union activity.” Notes from the call said French “is trouble” and showed that the manager was directed to talk to French.

THREATEN: The manager soon thereafter went to the worksite, inviting French into the manager’s car where he “tried to figure out if [French] was involved with the union.” French’s manager told him that he was being looked at closely by upper management and if he was involved with union, it would bring a lot of unwanted attention onto himself and the team. 

INTERROGATE/SURVEIL: In the car, French’s manager urged him that if there was anything he needed to discuss, he should bring it to the manager’s attention. French felt his manager was asking if French knew of anyone involved in the union activity or could give such employees’ names. French’s regional director then took French on an unscheduled ride-along, a first for French. The regional director steered the conversation to the topic of employee complaints. French refused to give names but was willing to discuss an employee concern which did not pertain to French about how certain employees were being evaluated.

PUNISH: The regional director then emailed senior management that French “talked about things he had no reason to be involved with.” French’s manager was then instructed to isolate French and some others on his team. Accordingly, the manager reassigned the employees to rural areas, making their work harder, more isolated and more distant from their homes. 

SURVEIL: The supervisor that oversaw the reassigned employees reported allegations to Human Resources that one of French’s coworkers had laid sod at another coworker’s house on company time, that two of French’s coworkers did work at his supervisor’s rental house during work hours, and that one coworker worked on a haunted house during work time.

THREATEN: Human Resources investigated with the participation of the regional director who was permitted to sit in on employee interviews.  French’s new supervisor told French that he should get on this supervisor’s side because French had been “outed as the union mastermind,” “people were going to get fired,” and that the supervisor had obtained his position by previously “squashing a union drive.” The supervisor may also have said he sometimes brought a gun to work.

PUNISH: Human Resources wrote an investigation report. The regional director was one of the decision makers who reviewed the report. Three months after the union handbilling, Charter fired French and his two coworkers. Their termination notices stated they were discharged for “violation of Charter’s code of conduct” and “violation of Charter’s employee handbook.” One of their notices added “violation of Charter’s timekeeping policy.”  The three employees asked HR why they were being fired and received no answer.

Case Result: The court of appeals affirmed the NLRB’s decision that all the above employer conduct violated the NLRA.

Practice Tip:

A non-union employer that wants to remain non-union must fully train all managers and supervisors on the do’s and don’ts of reacting and responding to pro-union activity. These trainings are a regular function of outside employment counsel.

There are many things management can do when confronted with union activity, such as explaining to employees why the company believes employees don’t need a union and presenting accurate facts regarding life with a union that the union may not have told them.

Even before any union activity, it is perfectly legal for management to educate employees as to why the company prefers not to have a union and why it feels union representation often has undesirable consequences for employees. But management members must know where the lines are between what they can and cannot say or do.

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