NLRB: Employer Should Not Have Asked an Employee How Things Were Going During a Union Campaign

by Foley & Lardner LLP
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Employers must tread carefully when communicating with employees during union organizing campaigns. A seemingly innocuous question can violate the National Labor Relations Act’s (NLRA) prohibition on employers soliciting grievances during a union organizational campaign and accompanying the solicitation with a promise, express or implied, to remedy such grievances. However, it is not always clear what type of question or statement constitutes soliciting or promising to remedy grievances.

The National Labor Relations Board (NLRB or “the Board”), in a recent 2-1 decision, ruled that an employer violated the NLRA by asking an employee how things were going and stating it would follow-up and look into the employee’s complaints. Republican Board member and recently appointed Chairman Philip A. Miscimarra dissented, concluding that the employer’s actions were not sufficient to constitute soliciting grievances or impliedly promising to remedy them.

The employer in this case operates a long-term care and rehabilitation center. One of the center’s employees made complaints about a supervisor, which were relayed to the Chief Operations Officer (COO). While visiting the center, the COO approached the employee and asked her how things were going. After the employee voiced her complaints, the COO stated he would “follow up and look into” those concerns. He also inquired about the employees’ union activities at the center. Soon thereafter, the employee and others delivered a Union election petition to the company.

The Board stated that “the solicitation of grievances in the midst of a union campaign inherently constitutes an implied promise to remedy the grievances.” An employer can rebut this presumption of an implied promise by, for example, “establishing that it had a past practice of soliciting grievances in a like manner prior to the critical period, or by clearly establishing that the statements at issue were not promises.” The Board found that the COO’s comments above amounted to soliciting grievances and impliedly promising to remedy them in violation of the NLRA. The Board also found there was no evidence the COO had previously addressed employee complaints in the same manner. As a result of the above (and other) violations, the Board ordered a new election.

The above case is a reminder that employers must exercise caution when addressing employee complaints and grievances during union organizing campaigns. Employers should not depart from their normal pre-campaign practices for addressing employee concerns, and should be prepared to provide evidence of those past practices.

The NLRB recently moved one step closer to a Republican majority when on August 2, 2017 the Senate approved President Trump’s first pick (Marvin Kaplan) to fill one of the two vacancies on the Board, which now creates a 2-2 Democrat-Republican split on the Board. If approved, President Trump’s other pick (William Emmanuel), would give the Board a Republican-led majority, which certainly could change the outcome of matters that are decided by the Board. We’ll be watching the Board makeup and its decisions closely and will provide updates on important developments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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