The slow pace at the NLRB continues this Spring, as only one or two decisions are issued each week. Recent decisions, one from the NLRB and one from the District of Columbia Court of Appeals, are worth noting because they illustrate recurring themes under the NLRA.
Protecting The Identity Of Employee Informants
In Alcan Rolled Products-Ravenswood LLC, 358 NLRB No. 11 (February 27, 2012).pdf the NLRB addressed a common situation involving employees who report on other employees in a unionized workforce. A bargaining unit member had two accidents while driving a forklift, both of which caused property damage. The employee in question was tested for drugs and alcohol; the drug test was negative, while the test revealed the presence of alcohol, but apparently not at high enough levels to warrant action under the policy. While the employer was investigating the second accident, several bargaining unit members expressed concern for safety working with the employee, with one stating that the employee was in need of help. The supervisor in charge had assured all bargaining unit members that the discussions were "off the record."
During a meeting about the accidents, the employer informed the union that it intended to discharge the employee for the accidents, and mentioned that some bargaining unit members had expressed concern about working with the employee. The union requested the names of the employees; the employer refused to provide the information. In doing so, the employer advanced two reasons as to why it did not have to disclose the information. First, that the employer did not intend to rely on the information because whatever the co-workers had told it was not relevant to the discharge. Second, that the information was confidential.
The NLRB adopted the Administrative Law Judge's conclusion that the employer violated Section 8(a)(5) of the Act, which requires employers to bargain in good faith, by not trying to reach an accommodation with the union over the provision of the employee names.
The ALJ ruled that employer "did not forswear reliance on the information" obtained from co-workers mainly due to its written responses to the union during the grievance process. In these letters, the employer stated that the discharged employee's actions "put other employees and you at risk." The takeaway here is that employers should be very careful what they put in written responses to the union, as it sometimes can be perceived as contrary to a position taken with respect to an information request.
The employer also asserted that it did not have to provide the names of the employee witnesses because the information was "confidential," specifically, that it had given assurances that the conversations were off the record. In rejecting this assertion, the ALJ noted that an employer's assurances of confidentiality to an employee are not enough to cloak the employee's identity as "confidential." The ALJ noted in a footnote:
"I do not criticize the efficacy of this management approach (although it is worth bearing in mind that confidentiality can also encourage dishonest reports, as the informants need never face scrutiny). But management's willingness to grant confidentiality cannot, by itself, create a legitimate employer interest in confidentiality for purposes of avoiding disclosure of otherwise relevant information to a union."
Nonetheless, the ALJ deemed the identity of witnesses to be confidential due to a long line of NLRB decisions dealing with the situation. Employers have legitimate confidentiality concerns to foster employee reporting of safety violations and criminal conduct, and to protect employees from the potential threat of retaliation. That the information was confidential, though, did not absolve the employer of any responsibility. If information is deemed to be "confidential" then the employer must attempt to reach an accommodation over the disclosure of the information by bargaining with the union. The employer in the case asserted that there was no accommodation that would have been acceptable, but the ALJ concluded this was preemptive and that the employer's failure to try was what constituted a violation of the Act. Thus, the ALJ gave some guidance:
"While I agree that is far from clear that the Union would have accepted any offer of accommodation, the Respondent's duty was to make the effort. It could have, for instance, offered to provide the identities to a designated union official, subject to bargained restrictions on the Union's use and dissemination of the information. It could have offered to provide the identities subject to a confidentiality agreement to an International Union unaffiliated with the facility for use interviewing the employees. Certainly there are other potential accommodations that the parties could discuss."
The case does not break any new ground. It does, however, illustrate a common problem with the response to an information request made by a union. An employer should never outright reject an information request. Information requests can be irksome if for no other reason than it often seems that the union does little or nothing with the information. Simply denying an information request on confidentiality grounds brings some risk of a violation of the Act. First, in order for the information to be "confidential" it must be proven that there is a legitimate employer interest in it; we know from this case that merely assuring employees that their identities will remain confidential is not enough. There must be an articulable basis. Second, even if the information is confidential, the employer still must bargain over the the circumstances under which it is disclosed. In other words, just because it is confidential does not privilege an employer from ever turning it over to the union. There is no requirement that the parties actually reach an accommodation, just that they try.
Supervisors And The Representation Election Process
A recent DC Circuit Court of Appeals case illustrates another recurring theme under the NLRA: the importance of understanding which individuals in a workforce are supervisors within the meaning of the Act. As a general rule, supervisors are excluded from the voting unit. Individuals who fall within the statutory Section 2(11) definition of "supervisor" often possess enough authority over employees that they can violate the Act. It is important to understand which folks are supervisors before organizing occurs as the employer in Veritas Health Services, Inc. v. NLRB, No. 11-1107, (DC Cir. March 13, 2012).pdf recently found out.
in Veritas, the employer hospital underwent an organizing drive targeting the nursing staff. At least some of the union adherents were "charge nurses" (the equivalent of leadpersons or forepersons in other workplaces), with two in particular, who "actively encouraged subordinate registered nurses to support the Union." These activities included telling nurses that they "need" to attend union meetings and "need" to sign an authorization card.
The union gained enough support to file a petition for an election. During the processing of the petition, the parties agreed that the charge nurses were supervisors and removed them from the voting unit. The charge nurses then switched sides and campaigned for the employer. The employer lost the election and challenged the results based on the charge nurses/supervisors pro-union conduct. The DC Court of Appeals rejected this claim, finding that under NLRB authority the conduct did not interfere with the freedom of choice. Specifically, the Court found that the passage of time (the pro-union conduct was pre-petition) and the fact that the charge nurses campaigned for the employer such that "registered nurses would have no reason to feel pro-Union coercion or interference from the [charge nurses'] prior conduct."
Again, not anything new, however it does illustrate the importance of understanding which individuals in a workforce are supervisory. As the Court noted:
" ...supervisors do not usually engage in pro-union activities against the wishes of management. But the issue of pro-union conduct by a supervisor sometimes arises when it was unclear or disputed at the time of the pro-union activity whether the employee was a statutory supervisor."
It is often the case that employers do not know (and have not considered) whether certain classifications within a workforce are supervisory until an NLRB petition is filed. By that time, however, it is often too late. If an employer grants a particular classification authority over employees, it should also do an analysis of whether such position would be considered supervisory under the Act, and understand the potential consequences.