NLRB Affirms that HR Representative Violated NLRA While Interviewing Employees to Evaluate Their Supervisor

Practical Law Legal Update 5-599-3087 (Approx. 7 pages)

NLRB Affirms that HR Representative Violated NLRA While Interviewing Employees to Evaluate Their Supervisor

by Practical Law Labor & Employment

Background

The ALJ who had heard the case in 2011 found that the interview of the employee about her supervisor was not an unlawful interrogation under the NLRA. In the vacated decision, the Board overruled the ALJ on this issue:

Noting that the Board applies a totality of circumstances test when considering whether an employer engaged in an unlawful interrogation. Specifically, the Board evaluates:
- whether there is a history of perceived hostility concerning employee rights;
- whether the nature of the information sought is overall coercive;
- whether the interrogator appears to be seeking information on which to base action against individual employees;
- the identity and organizational level of the interrogator;
- the place and method of the interrogation; and
- the truthfulness or candor of the reply.
(Rossmore House, 269 N.L.R.B. 1176 (1984); and Westwood Health Care Ctr., 330 N.L.R.B. 935 (2000).)
Holding that the HR representative's interview of the employee was an unlawful interrogation because the HR representative:
- did not explain the nature of the interview;
- did not state that the interview was voluntary; and
- asked the employee to keep the matters discussed confidential even though the employee's critiques of her supervisor would be shared with higher-level management.

In the vacated decision, the Board also affirmed the ALJ's conclusions, including that under Wright Line:

The termination of the purportedly interrogated employee was unlawful under the NLRA.
The employer had legitimate reasons supporting its decision to terminate two other employees.

(251 N.L.R.B. 1083 (1980).)

Outcome

The Board (Chairman Pearce, and Members Hirozawa and Miscamarra) unanimously affirmed that:

the termination of the purported interrogated employee violated the NLRA.
the employer lawfully terminated two other employees.

The Board majority (Chairman Pearce and Member Hirozawa):

Affirmed the vacated decision's reasoning and holding that the HR representative's interview of the employee was unlawful under the NLRA.
Added that:
- the HR representative's purpose in asking the employee for the names of employees who had complained about the supervisor was not relevant;
- the key issue was whether the questioning of the employee about the supervisor would reasonably tend to coerce the employee in exercising her Section 7 rights (Hanes Hosiery, Inc., 219 NLRB 338 (1975));
- the employee's volunteering that other employees had raised similar complaints about the supervisor did not confer a privilege on the HR representative's request that the employee identify those employees; and
- the dissent’s characterization of the HR representative's line of questioning as "logical" is irrelevant because the inquiry went too far in seeking information about other employees' protected activities.

Member Miscimarra dissented solely from the conclusion that the HR representative engaged in an unlawful interrogation and would have affirmed the ALJ's conclusion that the HR interview was lawful. Member Miscimarra noted, among other things that:

There was no basis for the majority to conclude that other employees' purported complaints about a supervisor's effectiveness and impact on morale in discussions with the interviewed employee were concerted protected activities. For example, there was no allegation or record evidence that any employees who allegedly conferred with the interviewed employee about their supervisor, or that the interrogated employee herself, had the object of initiating, inducing or preparing for group action (Meyers Indus., 281 N.L.R.B. 882, 887 (1986)).
The purpose of the HR representative's questioning was simply to get information about whether the supervisor was doing a good job and not for any negative purpose such as taking an adverse employment action against the employees.
The HR representative only asked for the names of other employees who had complained about the supervisor when the employee volunteered that other employees had complained.
The HR representative's questioning of the employee about the employees who had complained about the supervisor was a logical follow-up to the employee's disclosure, and could not be reasonably construed as an attempt to coerce or restrain the employee or the other employees' exercise of Section 7 rights.
There was no indication that the HR representative or anyone else in the employer's organization intended to take adverse action against employees who had complained about the supervisor.
Nothing in the NLRA prohibits an employer, on receiving information that employees have complained about a particular supervisor, from asking for the names of those employees to follow-up on their grievances.
An employer has a legitimate business reason for seeking information about employees who have complained about a particular supervisor because poor supervisors can adversely affect all employees and can expose an employer to liability.

Practical Implications

The Board's decision in this case injected unexpected NLRA implications into routine HR processes in a nonunion workplace. Here, the fairly common HR practice of gathering feedback about a supervisor's performance and team morale transformed into an unlawful interrogation. In neither the vacated decision, nor here did the Board outline how an employer may lawfully conduct these types of interviews. Specifically, in neither opinion did the Board identify:

What type of questioner could have been non-coercive. The Board held that an HR representative outside of the line of supervision was coercive because she wielded some authority.
Where questioning would not be coercive. The Board found the meeting coercive apparently because it was not the employee's regular work area and the door was closed.
How an HR representative can lawfully interview an employee to gather personal rather than group feedback about a supervisor. The Board appears to hold that a one-on-one meeting is, by its nature, coercive.
How an HR representative can lawfully ask an employee to identify employee complainants about workplace issues or witnesses to workplace incidents. The Board did not address how an employer can follow-up on the interviewed employee's hearsay statements about other employees' complaints or observations.
How an employer can disavow a supervisor's alleged ULPs and rebut the antagonism towards Section 7 activity that the Board imputes to an employer before it conducts interviews in part to evaluate the supervisor.

The Board majority's adopted findings supporting its conclusion that the interview was coercive (that the employer failed to inform the employee why it was interviewing her, that her participation was voluntary and that she could refrain from participating without repercussions) suggest that the Board will tend to find any kind of employee interview coercive unless an employer begins the interview with a statement of lawful intentions and a disclaimer of coercive intentions akin to those in Johnnie's Poultry Statement (see Standard Document, Employee Interview Statement for an Unfair Labor Practice Investigation (Johnnie's Poultry Statement)).

Short of providing a Johnnie's Poultry Statement, employers might consider instructing interviewers of employees covered by the NLRA to:

Explain the purposes of an interview before starting the questions.
Disclaim intentions to infringe on employees' Section 7 rights.
Note that participation in an interview is voluntary or why it is compulsory in light of legitimate business concerns.
Be judicious when deciding whether to instruct an employee to keep matters discussed confidential. The Board may consider an improper confidentiality instruction evidence that an interview is an unlawful interrogation.

The majority opinion adds a bald assertion that purported discussions about the supervisor among employees were concerted protected activities. The majority appears to imply that discussing supervisors with other employees is inherently concerted protected activity. The inherently concerted theory is a construct that the Board majority has been endorsing recently where evidence needed to apply the traditional Meyers’ test (to determine whether concerted activity occurred) and Wright Line test (to determine whether an employee's concerted protected activity was a motivating factor for discipline applied to that employee) have been lacking (for example, see Legal Update, Discussing Wages with Fellow Employees is Inherently Concerted Activity: NLRB). Employers should understand that the Board majority will likely more often than in the past find employee discussions about employees' employment terms and conditions, including their supervision, inherently concerted. Therefore, both unionized and nonunionized employers can expect further ULP complaints rooted in actions they have taken as part of routine HR evaluative and investigative processes.

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