NLRB Expands NLRA Protections: Rejects Solicitation of Grievance Defense

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

On July 2, 2013, the National Labor Relations Board (NLRB) decided a case, Albertson’s LLC, 359 NLRB No. 147, implicating two elements of the National Labor Relations Act. The Board held that the employer, a retail grocery store, interfered with employee rights by soliciting grievances during union organizational activity—even though the employee did not respond to that solicitation. In addition, the Board found that questioning an employee while investigating an unfair labor practice (ULP) charge was coercive, notwithstanding the fact that the employer had properly advised the employee of his rights prior to two earlier interviews.

Solicitation of Grievances

The Board has long held that the solicitation of grievances during union organizing is unlawful when the solicitation carries with it an implicit (or explicit) promise to remedy the grievance and impresses upon the employee that union representation is unnecessary. Importantly, while the solicitation of grievances during union organizing is not per se unlawfully coercive, a negative inference is particularly compelling when the solicitation constitutes a significant deviation from the employer’s existing practice of addressing employee complaints.

In Albertsons, the Board found that company officials unlawfully coerced an employee while conducting one-on-one meetings during a union organizing campaign. The employer, in notifying a cashier of her upcoming meeting to discuss open enrollment in the company benefits plan, stated: “If you have any problems with your schedule or if you guys want to complain, now is the time.” During the one-on-one meeting, a high ranking company representative further asked the cashier if she had “any concerns.” The cashier did not respond, and the union later filed a ULP, claiming that the solicitation of grievances was coercive and thus violated the Act.

In its defense, the employer relied upon the Board’s holding in William T. Burnett & Co., a case in which the employer’s solicitation of grievances was found to be lawful. In Burnett, the Board affirmed the administrative law judge’s (ALJ) holding that the company president’s invitation to employees to discuss problems with him, made during a group meeting, was not coercive. The ALJ reasoned that the fact that no employee responded to his invitation was evidence that the employees did not believe that the company would act upon their grievances.

In response, the Board overruled Burnett—to the extent that Burnett stood for the proposition that the solicitation of a grievance cannot be found unlawful if the solicited employee failed to raise a grievance in response to the solicitation. In so doing, the Board noted that the employee’s silence “does not negate the objectively coercive tendency of the solicitation itself, which depends on the employer’s message considered in context.” The Board found that the solicitation was coercive in this context because the meeting was one-on-one with a high-level company representative and constituted a “significant change” from the company’s normal practice of addressing such complaints through a telephone hotline.

The takeaway from this part of the Albertsons decision is clear: employers are well advised to establish and utilize a wide range of mechanisms to address employee concerns prior to the union organizing activity. For example, employers can list a variety of complaint resolution mechanisms such as one-on-one meetings, open-door policies, group meetings, comments to the president, human resources/management roundtables, etc. in their handbooks—and then ensuring that those activities are undertaken on a regular basis. This practice promotes positive employee relations and may surface and resolve employee issues before they can become fodder for a union organizer. Simply put, employers should make the good faith solicitation of grievances a standard practice. In so doing, the continuation of those practices in the face of union organizing is merely “business as usual.”

Legality of Renewed Questioning: Drawing a Bright Line

In addition to upholding the ALJ’s adverse determination related to the solicitation of grievances, the Board held that the employer had, at least technically, failed to meet its obligation to safeguard an employee interview against coercion. In so doing, the Board reversed the ALJ and followed a Johnnie’s Poultry (146 NLRB 770 (1964)) bright-line approach.

The Board had long recognized the tension between the needs of an employer to interview an employee regarding a ULP, and the inherent danger that such an interview could be coercive. When a ULP is filed, the employer has a legitimate need to uncover the underlying facts, and interviewing an employee is often the best (or only) way to do so. In Johnnie’s Poultry, the NLRB sought a balance between the employer’s need to interview an employee-witness in connection to its defense against a ULP and the employee’s right to engage in NLRA-guaranteed rights absent coercion.

Most employers are familiar with the longstanding Johnnie’s Poultry safeguards, the pillars of which include: (1) communicating the purpose of the questioning to the employee prior to the interview; (2) assuring the employee that no reprisals will take place based upon the substance of any answer or refusal to answer any question; and (3) obtaining the employee’s permission to conduct the interview on a voluntary basis. In many cases, employers utilize a standard Johnnie’s Poultry form prior to the interview, reading it aloud to the employee and then asking the employee to sign the form if he or she voluntarily consents to the interview.

In Albertsons, the employer interviewed the employee on four occasions. The first two interviews were prefaced with appropriate Johnnie’s Poultry safeguards. However, the third and fourth interviews were not so prefaced. The Board held that the Johnnie’s Poultry safeguards, while effective for the first two interviews, were not effective for the third and fourth interviews. In so holding, the Board considered several factors including: (1) the long (four months) interval between the safeguard and the later interviews, (2) the presence of a different interviewer; (3) the new location of the third and fourth interviews; and (4) a variance in the scope of questioning.

The takeaway from this part of the Albertsons decision is that when investigating ULPs, employers should treat each employee interview as a discreet event and apply the Johnnie’s Poultry safeguards accordingly. By doing so, employers ensure that the Board’s “bright-line application” of those safeguards works to their benefit. The alternative is to risk the Board’s fact-based determination as to whether or not prior safeguards “reasonably diminish the risk” that the subsequent interview was coercive.

- See more at: http://blog.ogletreedeakins.com/nlrb-expands-nlra-protections-rejects-solicitation-of-grievance-defense/#sthash.mpEntiO6.dpuf

On July 2, 2013, the National Labor Relations Board (NLRB) decided a case, Albertson’s LLC, 359 NLRB No. 147, implicating two elements of the National Labor Relations Act. The Board held that the employer, a retail grocery store, interfered with employee rights by soliciting grievances during union organizational activity—even though the employee did not respond to that solicitation. In addition, the Board found that questioning an employee while investigating an unfair labor practice (ULP) charge was coercive, notwithstanding the fact that the employer had properly advised the employee of his rights prior to two earlier interviews.

Solicitation of Grievances

The Board has long held that the solicitation of grievances during union organizing is unlawful when the solicitation carries with it an implicit (or explicit) promise to remedy the grievance and impresses upon the employee that union representation is unnecessary. Importantly, while the solicitation of grievances during union organizing is not per se unlawfully coercive, a negative inference is particularly compelling when the solicitation constitutes a significant deviation from the employer’s existing practice of addressing employee complaints.

In Albertsons, the Board found that company officials unlawfully coerced an employee while conducting one-on-one meetings during a union organizing campaign. The employer, in notifying a cashier of her upcoming meeting to discuss open enrollment in the company benefits plan, stated: “If you have any problems with your schedule or if you guys want to complain, now is the time.” During the one-on-one meeting, a high ranking company representative further asked the cashier if she had “any concerns.” The cashier did not respond, and the union later filed a ULP, claiming that the solicitation of grievances was coercive and thus violated the Act.

In its defense, the employer relied upon the Board’s holding in William T. Burnett & Co., a case in which the employer’s solicitation of grievances was found to be lawful. In Burnett, the Board affirmed the administrative law judge’s (ALJ) holding that the company president’s invitation to employees to discuss problems with him, made during a group meeting, was not coercive. The ALJ reasoned that the fact that no employee responded to his invitation was evidence that the employees did not believe that the company would act upon their grievances.

In response, the Board overruled Burnett—to the extent that Burnett stood for the proposition that the solicitation of a grievance cannot be found unlawful if the solicited employee failed to raise a grievance in response to the solicitation. In so doing, the Board noted that the employee’s silence “does not negate the objectively coercive tendency of the solicitation itself, which depends on the employer’s message considered in context.” The Board found that the solicitation was coercive in this context because the meeting was one-on-one with a high-level company representative and constituted a “significant change” from the company’s normal practice of addressing such complaints through a telephone hotline.

The takeaway from this part of the Albertsons decision is clear: employers are well advised to establish and utilize a wide range of mechanisms to address employee concerns prior to the union organizing activity. For example, employers can list a variety of complaint resolution mechanisms such as one-on-one meetings, open-door policies, group meetings, comments to the president, human resources/management roundtables, etc. in their handbooks—and then ensuring that those activities are undertaken on a regular basis. This practice promotes positive employee relations and may surface and resolve employee issues before they can become fodder for a union organizer. Simply put, employers should make the good faith solicitation of grievances a standard practice. In so doing, the continuation of those practices in the face of union organizing is merely “business as usual.”

Legality of Renewed Questioning: Drawing a Bright Line

In addition to upholding the ALJ’s adverse determination related to the solicitation of grievances, the Board held that the employer had, at least technically, failed to meet its obligation to safeguard an employee interview against coercion. In so doing, the Board reversed the ALJ and followed a Johnnie’s Poultry (146 NLRB 770 (1964)) bright-line approach.

The Board had long recognized the tension between the needs of an employer to interview an employee regarding a ULP, and the inherent danger that such an interview could be coercive. When a ULP is filed, the employer has a legitimate need to uncover the underlying facts, and interviewing an employee is often the best (or only) way to do so. In Johnnie’s Poultry, the NLRB sought a balance between the employer’s need to interview an employee-witness in connection to its defense against a ULP and the employee’s right to engage in NLRA-guaranteed rights absent coercion.

Most employers are familiar with the longstanding Johnnie’s Poultry safeguards, the pillars of which include: (1) communicating the purpose of the questioning to the employee prior to the interview; (2) assuring the employee that no reprisals will take place based upon the substance of any answer or refusal to answer any question; and (3) obtaining the employee’s permission to conduct the interview on a voluntary basis. In many cases, employers utilize a standard Johnnie’s Poultry form prior to the interview, reading it aloud to the employee and then asking the employee to sign the form if he or she voluntarily consents to the interview.

In Albertsons, the employer interviewed the employee on four occasions. The first two interviews were prefaced with appropriate Johnnie’s Poultry safeguards. However, the third and fourth interviews were not so prefaced. The Board held that the Johnnie’s Poultry safeguards, while effective for the first two interviews, were not effective for the third and fourth interviews. In so holding, the Board considered several factors including: (1) the long (four months) interval between the safeguard and the later interviews, (2) the presence of a different interviewer; (3) the new location of the third and fourth interviews; and (4) a variance in the scope of questioning.

The takeaway from this part of the Albertsons decision is that when investigating ULPs, employers should treat each employee interview as a discreet event and apply the Johnnie’s Poultry safeguards accordingly. By doing so, employers ensure that the Board’s “bright-line application” of those safeguards works to their benefit. The alternative is to risk the Board’s fact-based determination as to whether or not prior safeguards “reasonably diminish the risk” that the subsequent interview was coercive.

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.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.