Seventh Circuit Decision Drives Home Importance of Prudence in Communicating With Employees About Union Issues

In AutoNation, Inc. v. NLRB, the Seventh Circuit enforced a National Labor Relations Board decision that found a car dealership to be in violation of the National Labor Relations Act for interfering with workers’ efforts to unionize and for unlawful discharge of an employee.

Libertyville Toyota learned that its auto mechanics were contemplating joining a union. The dealership held several meetings with employees to discuss the issue. An employee secretly recorded audio during the last meeting. The Seventh Circuit applied a deferential standard of review, which looks to see if the Board findings are supported by substantial evidence. Under this standard, the Seventh Circuit panel had no trouble upholding the Board’s findings that, in the meetings, management (1) suggested that unionization would be futile; (2) threatened that unionized employees might be demoted; (3) warned that unionization may lead to blacklisting; and (4) implicitly promised salary increases if the employees did not unionize. While the communication was subtle,

[t]he Act is especially concerned with the economic power that an employer has over employees. The underlying message of [29 U.S.C. § 158(a)(1)] is that an employer . . . needs to take care in the rhetoric it uses when discussing union issues with its workers.

AutoNation, slip op. at 12–13.

The panel also enforced the Board’s finding of unlawful discharge. An anonymous tip led the dealership’s management to pull the employee’s driving record—the employee’s license was suspended for a recent DUI. Upon learning of the employee’s status, the dealership suspended him because the employee’s job required him to drive (and required him to tell his employer if his driving privileges changed). While suspended, the employee received two ambiguous form letters that seemed to suggest he had been fired. The employee filed for unemployment. The dealership received notice of the employee’s unemployment claim, and told the state that the employee had not been fired—but the dealership never contacted the employee. Several weeks later, the dealership fired the employee for job abandonment. The Board concluded that the firing was pretextual in light of the union issues and the lack of clarity in the dealership’s communications with the employee. In short, the dealership knew that the employee thought he was fired, so the dealership’s cries of “job abandonment” were a ruse and supported the Board’s conclusions that the firing for job abandonment was pretextual.

In light of the events surrounding the employee’s firing and because of the other evidence of the dealership’s antipathy towards unionization, the appellate court concluded that the Board had enough evidence to find that the employee’s protected conduct was a “motivating factor” in his termination, notwithstanding the employee’s license having been suspended.

This decision emphasizes the care that employers must exercise in communicating with employees about union issues. It also serves as a reminder of the importance of clear communications with employees regarding the circumstances and timing of their discharge. In this matter, it appears that the dealership’s inconsistent communications with the employee muddied the waters and led, at least in part, to the Seventh Circuit’s acceptance of the Board’s finding that the employee had been unlawfully discharged.

AutoNation, Inc. v. NLRB, No. 13-CA-063676 (7th Cir. Sept. 4, 2015), available at

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