In maintaining business as usual as best it can amidst the ongoing COVID-19 crisis, the Board recently decided an issue concerning limitations on employer campaign tactics, and an employer's limits in restricting discussions with employees related to terms and conditions of employment.
In First American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54 (2020), the Board was presented with, among other issues, the question of whether an employer could encourage employees to convince coworkers to vote "no" in representation elections. The Board reaffirmed that an employer may solicit employees to convince others to vote "no" in an upcoming union election, only if the request is publicly made to a broad swath of employees, not on an individual basis, and preferably in written form, which is "indirect" and "impersonal."
The Board also restated its recent decision that employer-imposed confidentiality limitations on employees' discussion of terms and conditions of employment is purposefully limited to ongoing employer investigations; otherwise such restrictions violate the Act.
After consolidating the staff and patients at its two separate nursing homes into one facility, the employer withdrew recognition from the Union that represented employees from one of its facilities under the argument that the Union no longer had majority support in the new, combined workforce. The Union filed a representation petition, an election was held, and the vote count split right down the middle, meaning the Union did not attain majority support. The Union filed a number of objections, including with respect to a statement made by a supervisor to her subordinate on the morning of the election, alleging that the statement constituted unlawful interference in violation of Section 8(a)(1). The supervisor told the employee that she had to help her "work on" another employee to get that employee to vote "no" in the election. The Administrative Law Judge ruled this conduct to be lawful.
The Board overruled the ALJ and concluded that the employer's conduct violated the Act. The Board acknowledged that an employer may lawfully seek the assistance of its employees in convincing other employees to vote against union representation, but only under certain circumstances. Citing decades-old precedent, the Board reaffirmed the principle that such requests for assistance may be made only if such request is "generally made to all employees through [an] indirect and rather impersonal medium . . . rather than directly to selected employees by their supervisors." The rationale for this limitation is fairly straightforward. Supervisors can exert extensive pressure on their subordinates, particularly during an organizing campaign, and the Board's rule here seeks to level the balance of power. The Board's guidance that such an appeal should be made in an "indirect and rather impersonal medium" suggests that a written, rather than verbal, appeal is preferred—presumably because it is less likely written campaign material can be deemed coercive than an in-person meeting.
The facts in Heritage Lakeside did not fall within the limited exception. Here, the supervisor directly approached an individual employee and asked for her assistance in persuading a fellow coworker to vote "no". The Board found that the direct solicitation by an employee's supervisor had a reasonable tendency to coerce and interfere with the employee's protected rights under the Act.
Limits on Employer Confidentiality Restrictions
The Board also took the opportunity to reaffirm Board precedent as to employer confidentiality limitations on an employee's right to discuss terms and conditions of employment with other employees.
Here, a supervisor approached a subordinate employee and asked her if she had told another employee that she would be fired unless she joined the union. After the employee denied making the statement, the supervisor told the employee he believed her and then asked her to keep their conversation confidential. Based on the totality of the circumstances surrounding the interaction between the supervisor and the employee, the Board found that the conversation did not amount to an unlawful interrogation into the employee's union activity.
However, the Board held that the supervisor's instruction that the employee keep the conversation confidential was unlawful because it violated the employee's Section 7 right to discuss terms and conditions of employment with other employees. Citing to its recent 2019 decision in Apogee Retail LLC d/b/a Unique Thrift Store, the Board reiterated that "employees not involved in a disciplinary investigation are free to discuss discipline or incidents that could result in discipline without a confidentiality limitation, and employees who are involved may also discuss them, provided they do not disclose information that they either learned or provided in the course of the investigation." Accordingly, the employee had a right to discuss the conversation with other employees because the conversation concerned union activity and terms and conditions of employment, and the employee was not the subject of or a participant in a disciplinary investigation.
Many Board decisions fail to offer bright-line guidance, as myriad NLRA principles are fact-intensive and the outcomes swing based on the political predilections of the Board majority at the time the issue is presented. Heritage Lakeside is generally no different, except for providing clarity as to what employers may not do. Employers cannot attempt to use employees as advocates during a union campaign to convince their colleagues to vote "no" if the method for garnering such support is based on individual conversations between supervisors and employees.
Public appeals to a mass audiences, preferably in written form, likely would be permitted. The question then becomes whether the mode of communication is sufficiently "indirect and...impersonal." On the spectrum, campaign flyers or letters distributed to a group of employees reasonably should be permitted, whereas an in-person captive audience speech may not be—depending on the size of the audience, the speaker and what is said during the meeting.
The Board also underscored its recent decision in Apogee Retail LLC (discussed here) that employer confidentiality policies must be limited to ongoing disciplinary investigations to avoid conflicting with employees' exercise of Section 7 rights.
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