NLRB Expands NLRA Protections: Rejects Solicitation of Grievance Defense

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.