By Kara M. Maciel and Lindsay A. Smith
On March 12, 2014, the National Labor Relations Board (“the Board”) concluded that a beef processing company committed an unfair labor practice in violation of the National Labor Relations Act (“NLRA”) when it terminated three workers for striking in protest of their working conditions (“Greater Omaha Packing Co.”). More significant, however, was the Board’s decision to reverse an Administrative Law Judge’s finding concerning the employer’s questioning of an employee. Prior to the strike, one of the terminated employees’ supervisors requested that the employee come to his office, at which point the supervisor asked the employee what he wanted. The employee responded that he wanted “an increase” and was immediately terminated by the supervisor. On these facts, the NLRB found a separate violation of the NLRA under Section 8(a)(1) because it determined that the questioning was coercive, separate and apart from the actual termination of the employee.
Board case law surrounding the unfair labor practice of coercive questioning/solicitation became revitalized this past July when the Board reversed almost 30 years of precedent with its decision in Albertson’s, LLC. Under Section 8(a)(1) of the NLRA, an employer is not allowed to interfere with, restrain, or coerce employees in the exercise of their rights. The Board has found that an employer’s solicitation of employee grievances can be considered coercive because it “raises an inference that the employer is promising to remedy the grievances” and/or may convey the employer’s displeasure with the employee, as was the case in Greater Omaha Packing, Co. This treatment of employer questioning has a long-standing basis in Board precedent, however, the Board reversed its precedent in Albertson’s, LLC by finding that such questioning violates the NLRA even if an employee fails to state a grievance or remains silent. Therefore, the Board in Greater Omaha Packing, Co, reinforced its treatment of grievance solicitation and expanded the possible bases for a violation of Section 8(a)(1).
Although the affected employee in Greater Omaha Packing, Co. did express a grievance in response to his supervisor’s solicitation, the decision is significant in its warning to the Board. Member Johnson concurred in the decision, but warned that the Board should not take this so far as to adopt a “gag rule” that would discourage employers from discussing the merits of workplace complaints with an aggrieved employee, specifically where those employees are unrepresented. He asserted that there is actually nothing “more conducive to labor peace” than an employer and aggrieved employee being able to meet and discuss their views as to what is fair and to determine what the employees want.
These recent cases are important because employers must be aware that their ability to solicit grievances directly from an employee is limited by Section 8(a)(1) of the NLRA. Even straightforward questions such as “what do you want,” may be interpreted by the Board as coercive based on the context of the question and its implications from the perspective of the employee.
An employer may avoid being perceived as using coercion if they:
- Establish a policy and practice of open dialogue with employees before and unrelated to union or other protected activity;
- make certain participation by an employee is completely voluntary;
- engage in a real discussion with the employee about the opposing views and possible solutions;
- inform the employee there will be no reprisal based on the employee’s participation in the discussion;
- avoid linking any discussion with current union or other protected activity, and
- take steps to address some of the concerns raised by the employee as a part of the regular open dialogue practice.