In maintaining business as usual as best it can amidst the ongoing COVID-19 crisis, the Board recently decided an issue concerning limitations on employer campaign tactics, and an employer’s limits in restricting discussions with employees related to terms and conditions of employment.

In First American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54 (2020), the Board was presented with, among other issues, the question of whether an employer could encourage employees to convince coworkers to vote “no” in representation elections. The Board reaffirmed that an employer may solicit employees to convince others to vote “no” in an upcoming union election, only if the request is publicly made to a broad swath of employees, not on an individual basis, and preferably in written form, which is “indirect” and “impersonal.”

The Board also restated its recent decision that employer-imposed confidentiality limitations on employees’ discussion of terms and conditions of employment is purposefully limited to ongoing employer investigations; otherwise such restrictions violate the Act.

Factual Background

After consolidating the staff and patients at its two separate nursing homes into one facility, the employer withdrew recognition from the Union that represented employees from one of its facilities under the argument that the Union no longer had majority support in the new, combined workforce. The Union filed a representation petition, an election was held, and the vote count split right down the middle, meaning the Union did not attain majority support.  The Union filed a number of objections, including with respect to a statement made by a supervisor to her subordinate on the morning of the election, alleging that the statement constituted unlawful interference in violation of Section 8(a)(1). The supervisor told the employee that she had to help her “work on” another employee to get that employee to vote “no” in the election. The Administrative Law Judge ruled this conduct to be lawful.

Analysis

The Board overruled the ALJ and concluded that the employer’s conduct violated the Act.  The Board acknowledged that an employer may lawfully seek the assistance of its employees in convincing other employees to vote against union representation, but only under certain circumstances.  Citing decades-old precedent, the Board reaffirmed the principle that such requests for assistance may be made only if such request is “generally made to all employees through [an] indirect and rather impersonal medium . . . rather than directly to selected employees by their supervisors.”  The rationale for this limitation is fairly straightforward.  Supervisors can exert extensive pressure on their subordinates, particularly during an organizing campaign, and the Board’s rule here seeks to level the balance of power.  The Board’s guidance that such an appeal should be made in an “indirect and rather impersonal medium” suggests that a written, rather than verbal, appeal is preferred—presumably because it is less likely written campaign material can be deemed coercive than an in-person meeting.

The facts in Heritage Lakeside did not fall within the limited exception.  Here, the supervisor directly approached an individual employee and asked for her assistance in persuading a fellow coworker to vote “no”. The Board found that the direct solicitation by an employee’s supervisor had a reasonable tendency to coerce and interfere with the employee’s protected rights under the Act.

Limits on Employer Confidentiality Restrictions

The Board also took the opportunity to reaffirm Board precedent as to employer confidentiality limitations on an employee’s right to discuss terms and conditions of employment with other employees.

Here, a supervisor approached a subordinate employee and asked her if she had told another employee that she would be fired unless she joined the union. After the employee denied making the statement, the supervisor told the employee he believed her and then asked her to keep their conversation confidential.  Based on the totality of the circumstances surrounding the interaction between the supervisor and the employee, the Board found that the conversation did not amount to an unlawful interrogation into the employee’s union activity.

However, the Board held that the supervisor’s instruction that the employee keep the conversation confidential was unlawful because it violated the employee’s Section 7 right to discuss terms and conditions of employment with other employees. Citing to its recent 2019 decision in Apogee Retail LLC d/b/a Unique Thrift Store, the Board reiterated that “employees not involved in a disciplinary investigation are free to discuss discipline or incidents that could result in discipline without a confidentiality limitation, and employees who are involved may also discuss them, provided they do not disclose information that they either learned or provided in the course of the investigation.” Accordingly,  the employee had a right to discuss the conversation with other employees because the conversation concerned union activity and terms and conditions of employment, and the employee was not the subject of or a participant in a disciplinary investigation.

Takeaways

Many Board decisions fail to offer bright-line guidance, as myriad NLRA principles are fact-intensive and the outcomes swing based on the political predilections of the Board majority at the time the issue is presented.  Heritage Lakeside is generally no different, except for providing clarity as to what employers may not do.  Employers cannot attempt to use employees as advocates during a union campaign to convince their colleagues to vote “no” if the method for garnering such support is based on individual conversations between supervisors and employees.

Public appeals to a mass audiences, preferably in written form, likely would be permitted. The question then becomes whether the mode of communication is sufficiently “indirect and…impersonal.”  On the spectrum, campaign flyers or letters distributed to a group of employees reasonably should be permitted, whereas an in-person captive audience speech may not be—depending on the size of the audience, the speaker and what is said during the meeting.

The Board also underscored its recent decision in Apogee Retail LLC (discussed here) that employer confidentiality policies must be limited to ongoing disciplinary investigations to avoid conflicting with employees’ exercise of Section 7 rights.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in nearly all industries, including multi-unit, multi-location, multi-employer and multi-union bargaining.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Elizabeth Dailey Elizabeth Dailey

Elizabeth Dailey is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.