How the NLRB treats employer statements made to employees in the context of unionizing often depends on the make-up of the Board at the time the case is reviewed. The Bush Board was more relaxed than the Obama Board that treated an employer’s statement as coercive if it was made in the context of union organizing. The Trump Board is beginning to develop its own interpretation of the laws.
In Johnston Fire Services LLC, 367 NLRB No. 49 (January 3, 2019), the employer fired an employee during an active union organizing drive. During termination, the employer asked if the employee saw the union organizer. The Trump Board ruled this question was lawful interrogation given the overall circumstances.
Context matters. One of the employees eligible to vote was previously counseled for tardiness. During the union organizing campaign, that employee reported late to work and was terminated by the company’s owner who was also in the parking lot at that time. The discussion between the owner and the employee was the subject of the unfair labor practice allegation for interrogation. There, the employee asked if he was being fired for speaking with the union organizer. The employer insisted the employee was being fired for his attendance but in the course of the conversation asked the employee if he had seen the organizer.
In Rossmore House, 269 NLRB 1176, 1178 (1984), the Board held that the coerciveness of an alleged statement or question must be evaluated under the totality of the circumstances. Specifically, the Board applied five factors:
- The background, i.e., is there a history of employer hostility and discrimination?
- The nature of the information sought, e.g., did the interrogator appear to be seeking information on which to base taking action against the individual employees?
- The identity of the questioner, i.e. how high was he in the Company hierarchy?
- Place and method of interrogation, e.g. was employee called from work to the boss’s office? Was there an atmosphere of “unnatural formality”?
- Truthfulness of the reply.
Applying these factors, the ALJ found that there was no history of hostility against unions. The nature of the information sought was not something to be used to take action against the employee because the decision to terminate already had been made and communicated. While the employer, as the “owner,” was the highest ranking official, the ALJ found this factor did not support a violation because the owner often performed work alongside employees, and the employer was very small. The fact the question was asked in the parking lot of a worksite, as opposed to a manager’s office, did not lend itself to being too formal. The ALJ also found the employee answered truthfully, which meant he felt he had nothing to hide.
The Trump Board’s interpretation of Rossmore is a welcome respite from the previous Board’s interpretation that could easily have found in favor of the terminated employee. A ruling in favor of the employee would have resulted in the reinstatement and backpay of an employee with chronic attendance problems.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.