As we have consistently noted in previous posts and in our "Labor Law 2012: Year in Review", the National Labor Relations Board is currently pursuing an aggressive agenda to expand the scope of the National Labor Relations Act’s protections. Earlier this month the Board took another step towards that goal with its decision in Grand Canyon Education, Inc., 359 NLRB No. 164, where it found that an employer violated Section 8(a)(1) of the Act by interrogating employees when its human resources representative interviewed employees to evaluate a supervisor. 

Specifically, upon hearing various complaints from employees, a HR representative conducted one-on-one meetings to ask "each employee a standard set of questions seeking an evaluation of [a particular supervisor] and her leadership abilities, as well as an assessment of team morale." In one particular interview, the HR representative:

said she "was meeting with everyone on the team and that whatever we talked about in that office, to keep it confidential." Pigati [the HR representative] subsequently asked Johnson [the employee] what she thought about Rosa [the supervisor] as a manager. Johnson replied that Rosa was trying her best but had not been given "a fair chance" to learn how to be a manager. She further volunteered that some employees had complained about Rosa’s managerial style. Pigati asked who those employees were, and Johnson named three employees. Pigati typed Johnson’s answers into her computer and, as Johnson was leaving, repeated to her, "Just keep this, you know, don’t talk to anybody else on the team."

The administrative law judge found that the HR representative promulgated an unlawful rule prohibiting employees from discussing terms and conditions of employment, but he did not find an unlawful interrogation. The judge noted that it should have been readily obvious to Johnson that the purpose of the "routine, non-confrontational" meeting was to find out how Rosa was doing as a supervisor, and that Johnson voluntarily mentioned that other employees had complained about Rosa even before Pigati asked for the employees’ names. Moreover, Johnson testified that "she did not feel uneasy, frightened, or apprehensive in meeting with Pigati and answering her questions."

Despite these facts, the Board reversed, finding that Pigati’s "interrogation was coercive" because:

the standard is an objective one, considering whether the questioning would reasonably tend to coerce the employee and thus restrain the exercise of Section 7 rights. … The determination does not turn on whether the questioned employee felt intimidated.

The Board found the interrogation coercive because of previous conduct by Rosa, not Pigati, in which Rosa interrogated employees about an email critical of "higher-ups," instructed employees not to read or forward such emails, and threatened them with discharge if they did so. The Board also relied on Pigati’s instruction to keep the discussion confidential and the fact that she did not advise them that the meeting was voluntary and that there would be no reprisals for refusing to cooperate. Moreover, the Board found that:

Pigati’s questions to Johnson extended beyond Johnson’s own views to include the identity of employees who had complained about Rosa. By this additional questioning, regardless whether it was prompted by Johnson’s own remark, Pigati sought information concerning protected activity by other employees concerning their terms and conditions of employment.

Given the supervisor’s previous unlawful conduct, the ramifications of this decision, assuming it survives Noel Canning, is uncertain because it is unknown if the Board would have decided the case differently if there were no previous violations. At the very least the decision suggests that employers who are merely trying to evaluate its supervisors and managers through employee interviews must advise employees of the purpose of the meeting, that the discussion is voluntary, and that there will be no reprisals for refusing to cooperate. Moreover, it also suggests that employers are precluded from asking an employee to identify other employees that might have complaints regarding their employment.

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