Labor & Employment Law Daily NLRB standard requiring employer questioning to ‘minimize’ intrusion into Section 7 activity rejected
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Monday, December 14, 2020

NLRB standard requiring employer questioning to ‘minimize’ intrusion into Section 7 activity rejected

By Ronald Miller, J.D.

On remand, the Board should determine, employing a standard consistent with its precedent, whether an employer’s questioning interfered unreasonably with rights protected by Section 7.

That part of an NLRB decision that applied a standard requiring that an employer “minimize” intrusion into Section 7 activity in questioning known participants in an unprotected work stoppage about activity of employees prior to the event was not supported by Board precedent, ruled the Second Circuit. Coercive questioning of employees is permitted when it relates solely to unprotected activity, and the Board’s precedents provided support for at least the “focus closely” portion of the standard announced by the Board. Had the Board adopted a less restrictive definition of “minimize,” its standard would have been consistent with its precedent. By allowing no inquiry into any conduct preceding the demonstration except to identify “actual participants,” the Board disallowed highly relevant inquiry into identification of those deserving of discipline (Time Warner Cable of New York City LLC v. NLRB, December 10, 2020, Leval, P.).

Foremen suspensions. On April 1, 2014, Time Warner issued two-day suspensions to several foremen for violating a new company directive regarding when and where employees were required to carry tools. Several of the foreman notified the union’s business agent that they had been suspended and that, in at least one instance, a foreman was suspended without union representation.

Work stoppage. Union representatives then called for a “safety meeting” for union members, to be held outside of the employer’s facility on the following morning. Shortly after 6:30 a.m., the business agent parked his car in the middle of the street outside the employer’s facility. At the business agent’s direction, six more employees similarly positioned their vehicles, obstructing traffic and preventing the employer’s service trucks from departing for work assignments. Over the next hour, approximately 50 employees gathered around the vehicles, contributing to the obstruction of traffic. During this time, union representatives distributed fliers regarding workplace safety and employees’ Weingarten rights. The gathering dispersed at about 8 a.m., but the obstruction caused a “ripple effect” of delayed or missed service appointments for the rest of the day.

The employer was able to identify several employees involved in the demonstration from video taken by the facility’s surveillance cameras. Each identified employee was then summoned to an investigatory interview and questioned about events leading up to the demonstration.

On April 16, 2014, the employer sued the union alleging claims under the LMRA and state law, seeking injunctive relief and damages. On April 18, 2014, the union filed an unfair labor practice charge before the Board. And, on May 5, 2014, the employer initiated an arbitration against the union, contending that the demonstration violated a no-strike clause. Subsequently, the union and employer voluntarily submitted to arbitration the question whether the demonstration violated the no-strike clause.

No-strike clause. The parties’ collective bargaining agreement had expired on March 31, 2013. That agreement contained a no-strike clause. Several days earlier, on March 28, 2013, the parties had executed a Memorandum of Understanding (MOU), which summarized agreed-upon changes for a renewed CBA. Further, a May 14, 2013 employer draft proposal of a successor CBA retained an identical no-strike clause.

The arbitrator ruled that the union had waived its argument that the no-strike clause had not been extended after the March 2013 expiration of the CBA and further determined that the demonstration violated that clause.

Interrogations. This appeal arises from the Board’s June 22, 2018 decision resolving the union’s unfair labor practice charge. The union alleged that the employer’s post-demonstration interrogation of employees constituted coercive interrogation in violation of Section 8(a)(1) of the Act and that the suspensions of employees who attended that demonstration unlawfully discriminated against those employees for participation in protected union activity in violation of Section 8(a)(3).

Based on the arbitration proceedings, the Board treated it as established that the demonstration violated the parties’ no-strike clause, so that the demonstration was unprotected. Accordingly, the Board found that the employer did not violate the NLRA by suspending employees who participated in the demonstration. The parties do not challenge the Board’s determinations that the demonstration was unprotected and that the resulting suspensions were lawful.

On the other hand, the Board found that the employer failed to limit its questioning of employees as to the identity of individuals who were actual participants in the demonstration but inquired into activity of employees prior to the event. The employer petitioned to set aside the Board’s order.

Coercive questioning. An employer’s questioning of an employee constitutes coercive interrogation that violates Section 8(a)(1) if it interferes with a right protected by Section 7 and “the words themselves or the context in which they are used … suggest an element of coercion or interference.” The crucial inquiry in determining whether questioning violated the Act is “whether under all of the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.”

Here, the principal issue was the propriety of the Board’s ruling that the three questions put to employees known to have participated in the demonstration—”Who told you about this gathering?; “When did you receive notification of the gathering?”; and “How was this event communicated to you?”—were unlawfully coercive under Section 8(a)(1). The Board concluded that these three questions intruded into employees’ Section 7 protected activity. The Board also concluded that the work stoppage violated the no-strike clause and so was “unprotected,” and the employer was entitled to inquire coercively. On the other hand, the employer’s “inquiry was … required to focus closely on the unprotected misconduct and to minimize intrusion into Section 7 activity.”

Minimize intrusion. The appeals court concluded that the portion of the Board’s standard requiring that in coercive questioning, employers “focus closely” on unprotected activity where it might touch on protected activity has a reasonable basis in law. However, the Board’s requirement that an employer “minimize” intrusion into Section 7 activity in such questioning, at least as understood by the Board in this case, does not.

The appeals court rejected the employer’s contention that it was entitled to question employees without limitation when the questioning is in reaction to unprotected activity, but instead found that that the first portion of the Board’s challenged standard—that an employer’s coercive interrogation must “focus closely” on unprotected conduct—was consistent with established Board precedent.

Board interpretation. In interpreting the “minimize” prong of its enunciated standard as prohibiting inquiry into pre-demonstration activity except to identify additional “actual participants in the demonstration,” the Board employed the more restrictive alternate meaning of the word allowing questioning to touch on protected activity no more than to “the smallest possible amount [or] extent.”

However, where, as in this case, the unprotected activity that was the legitimate focus of the employer’s inquiries was potentially intertwined with protected activity, such that any inquiry into the planning or motivation of the unprotected activity inevitably risked eliciting answers that would bear on the exercise of protected rights, the Board has previously allowed questioning that could elicit considerably more than the “smallest possible amount” of such overlap into protected activity. Had the Board adopted a less restrictive definition of “minimize,” its standard would have been consistent with its precedent.

By allowing no inquiry into any conduct preceding the demonstration except to identify “actual participants,” the Board disallowed highly relevant inquiry into identification of those deserving of discipline and into making appropriate distinctions among them.

Finding that the Board’s enunciated standard, at least as applied here, lacked a reasonable basis in law, the Second Circuit remanded the matter to the Board for further proceedings consistent with its opinion.

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