Labor & Employment Law Daily ‘Single’ question regarding union not unlawful ‘interrogation’
Wednesday, June 26, 2019

‘Single’ question regarding union not unlawful ‘interrogation’

By Ronald Miller, J.D.

An employer’s inquiry of a union supporter as to “what’s going on with this Union stuff” was not unlawful interrogation where there was no threat of reprisal or promise of benefits involved in the exchange.

The Second Circuit granted an employer’s petition to review NLRB rulings to the extent the Board found that a “single” question to a union supporter was coercive and that it unlawfully discharged a second employee for insubordination after he refused to attend a meeting with management. The question “what’s going on with this Union stuff” was not accompanied by a threat of reprisal or promise of benefits. Further, the appeals court agreed with the employer that its conduct and history did not warrant requiring it to read aloud a remedial notice at an employee meeting. The Board’s cross-petition for enforcement was granted in all other respects (Bozzuto’s Inc. v. NLRB, June 24, 2019, Kearse, A.).

Union organizing campaign. In this case, the disputed actions involved two employees who worked as selectors. One of the selectors, McCarty, frequently earned extra incentive pay for exceeding the employer’s labor standards. In September 2013, McCarty contacted a union. Shortly thereafter, he and a second selector, Greichen, along with two other employees met with a union representative. On Monday September 23, McCarty and Greichen began handing out union authorization cards to their coworkers. On September 26, an employee posted a message on the employer’s electronic bulletin board stating that union authorization cards were being distributed.

On October 1, McCarty encountered a senior officer who asked, “Hey Todd, what’s going on with this Union stuff?” The employee declined to discuss the matter and that was the end of the conversation. Later that day, the employer issued a written announcement acknowledging its knowledge of the union organizing activity. It also posted an announcement that production workers would be receiving an hourly pay increase.

Discharge. Also on October 1, Greichen was summoned to a meeting with management. According to the employer, the meeting was called because Greichen was allegedly displaying erratic behavior and making negative comments about the labor standards being too stringent. Greichen was warned against continuing his behavior.

On October 8, Greichen complained to his supervisors, and later a manager, that the labor standard pertaining to his assigned tasks had been unfairly shortened. The manager reported the employee’s accusation that standards were being manipulated to senior management. Management arranged a meeting with the employee and its industrial engineers to explain that the targets were not subject to manipulation. Greichen refused to attend, despite being told that the meeting was mandatory and that if he failed to attend, he would be suspended. Citing insubordination, the employer discharged him.

“Down time” complaint. McCarty remained involved in union organizing efforts following the discharge of Greichen. His involvement was well known to the employer. In early January 2014, McCarty became aware that his productivity numbers appeared to be unduly low. He surmised that the employer had not accounted for his “down time,” which made his performance appear to be less productive than it actually was. The employee complained about discrepancies he observed, but his complaint was disregarded. Thereafter, he spoke with another supervisor regarding his complaint, but received a five-day suspension for low productivity.

When McCarty returned to work, he was summoned to a meeting with management during which he was told that his performance was at 94 percent of the labor standard, and that, as a result, he was being discharged.

Following an internal investigation by the employer prompted by the employee’s communication with the NLRB, on May 14, 2014, McCarty was unconditionally offered reinstatement, plus compensation for losses in earnings and benefits. He declined reinstatement.

ULP charges. In October 2014, the General Counsel issued a complaint alleging that the employer had unlawfully interrogated McCarty, implemented a work rule prohibiting employees from discussing disciplinary measures, increased wages, issued Greichen a warning against engaging in protected activity, discharged Greichen in retaliation for his protected activities, and suspended and discharged McCarty because of its antiunion animus.

Ultimately, the Board unanimously agreed that the employer engaged in unfair labor practices in its announcement of wage increases and its restrictive speech policy, and in suspending and discharging McCarty. A divided Board found that the employer acted unlawfully in questioning McCarty and in discharging Greichen. It also required the employer to read aloud its remedial notice to a meeting of employees.

Petition for review. The employer petitioned for review of the Board’s decision, while the Board cross-applied for enforcement of its order. In its petition, the employer principally contends that substantial evidence did not support the Board’s findings that the single question to McCarty constituted an unlawful interrogation, or that the employer’s discharges of the two employees were either punishment for statutorily protected activity or motivated by antiunion animus; and neither the employer’s conduct not its history warranted the extraordinary remedy ordered by the Board.

The Second Circuit granted the employer’s petition for review with respect to the interrogation of McCarty and the discharge of Greichen for insubordination, and the order that the Board’s remedial notice be read aloud at a meeting of employees. In all other respects, the petition for review was denied. The Board’s cross-petition for enforcement was granted in all other respects.

Single question as interrogation. While an employer is prohibited from interfering with an employee’s interest in joining a union, employers nonetheless have a First Amendment right to engage in communications with employees about union activity. Such communications do not constitute unfair labor practices so long as they contain no threat of reprisal or promise of benefit.

Here, the appeals court found that the Board’s findings with regard to the “what’s going on with this Union stuff” question was not supported by the record. Clearly the questioner was a member of senior management. However, at the time of the questioning, McCarty was an open union supporter. Moreover, the question did not suggest that management sought to identify or discipline employees because they were union sympathizers, and the employer had not committed any prior unfair labor practices. Further, the court did not find that the record supported the Board’s view that McCarty’s response indicated that the question was coercive. Thus, the appeals court concluded, the record supported the conclusion that the question was not coercive and did not violate the NLRA.

McCarty’s discharge. By contrast, the appeals court rejected the employer’s challenge to the Board’s finding that it violated the Act by terminating McCarty. The employee was discharged because of low productivity, but the basis for that assessment was data that had been altered to decrease the employee’s perceived level of productivity. Moreover, the employer’s own investigation confirmed that the data had been altered. Thus, the Board’s finding that the discharge of McCarty was motivated by antiunion animus was supported by the record as a whole.

Discharge of Greichen. On the other hand, the appeals court agreed with the employer that it was justified in discharging Greichen. The court concluded that the Board’s findings regarding the employer’s conduct prior to summoning Greichen to the meeting with management was not supported by the record as a whole. The employer arranged the meeting because of Greichen’s claim that the company was manipulating it labor standards every day for the purpose of cheating employees. Thus, the Board’s finding that the meeting was not organized in a manner typical to address complaints about production and safety standards was not supported by the record as a whole.

Board’s remedies. In light of the appeals court’s conclusions that the employer did not violate the Act in discharging Greichen and posing the “what’s going on with this Union stuff” question to McCarty, it further found that the remedies ordered by the Board with respect to those findings were not enforced. The court also did not enforce that the Board’s remedial notice be read aloud at a meeting of the employer’s employees.

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