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Volume XI, Number 259

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Employer Leaves Lasting Impression…of Unlawful Surveillance

The NLRB rang in the New Year by examining what constitutes an impression of unlawful surveillance. In Dignity Health d/b/a Mercy Gilbert Medical Center, 370 NLRB No. 67 (January 6, 2021), the Board reaffirmed helpful guidance for employers regarding the dos and don’ts in the context of union organizing campaigns.

Specifically, the Board held that a supervisor violated Section 8(a)(1) of the Act by creating the impression of unlawful surveillance when she told an employee that she was aware of his union involvement, but otherwise failed to provide context as to where or how the information was obtained. The Board also found that persistent questioning of an employee pertaining to the union by high-level management constituted unlawful interrogation under the Act.

Background

In July 2018, the employer – a hospital and healthcare facility operator – began receiving reports of union activity by employees, and commenced a responsive information campaign regarding why it believed unionization was inappropriate for its employees.

At an employer-held meeting on the issue of organizing, a supervisor “outed” an employee as having been contacted by the union and being involved in the organizing. To that point, the employee’s union activity was largely unknown. The employer learned of the activity through video supplied by another employee, but did not reveal that to the employee who was outed.

One month later, the employer approached that same employee at his workstation and repeatedly asked him about his union involvement. When the employee denied his union affiliation, the employer began repeatedly asking him to confirm his name – noting each time that the same name had been flagged as the culprit of the union organizing efforts. Following this incident, the employee sent a group email accusing the employer of unlawfully inquiring into his organizing efforts.

The union then filed an unfair labor practice charge. The ALJ ruled that the employer violated the Act by giving the unlawful impression of surveillance and by interrogation.

Board Held the Employer’s Failure to Identify Its Source of Knowledge Provided Reasonable Grounds to Support Impression of Surveillance

The NLRB General Counsel asserted that the employer’s conduct unlawfully created the impression that the employee’s protected activity was being unlawfully monitored. In response, the employer argued its conduct was merely a vague gesture that could not reasonably create the impression of unlawful surveillance.

The Boar disagreed. Drawing on a 2007 Board decision, the Board explained that, “[w]hen an employer tells employees that it is unaware of their protected activities, but fails to identify the source of this information, an unlawful impression of surveillance is created because employees could reasonably surmise that employer monitoring has occurred.”  Conley Trucking, 349, NLRB 308, 315 (2007).

The Board concluded that it was reasonable for the employee to conclude that the employer’s knowledge had come from surveillance, since the supervisor failed to otherwise identify the source of her knowledge after singling out the employee during the pre-shift meeting.

The Board Also Found That Repeated Questioning by Management Constituted Unlawful Interrogation

The complaint also alleged that senior management violated the Act because it unlawfully interrogated the employee, by asking him repeatedly if he had heard about the Union, and if he was the individual who was flagged as the union organizer.

The Board agreed, finding that, based on the totality of the circumstances, the employer’s conduct was reasonably likely to restrain, coerce, or interfere with the employee’s right to engage in protected, concerted activity. In so deciding, the Board noted that while the questioning took place in a public area – the employee’s workstation – it remained unduly coercive due to the nature of the repetitive questioning, the insistence that the employee admit his affiliation or guilt, and the power imbalance between the parties involved.

Takeaways

This decision provides important guidance to employers as to when their conduct may tend to interfere with employees’ exercise of protected, concerted activities – which is particularly apt during a union organizing campaign.

First, the allegation of “impression of surveillance” is one of the more nuanced unfair labor practices. Under such an allegation, the employer is attempting to provoke a reaction by letting the employee know about his or her union activities. When addressing an employee’s union affiliation or organizing activities, the employer should not withhold the source of the information, as doing so likely will create the impression that the employee’s activities are being monitored and the employee is being subjected to unlawful surveillance.

Second, unlawful interrogation by employers – which also violates the Act – need not be confined to “closed door” conversations in formal settings. Rather, the test for interrogation is based on the totality of the circumstances, taking into consideration the power imbalance between the parties, the repetitiveness of the questioning, and the length of time over which the questioning took place. Employers should thus avoid persistent questioning of employees with regard to their protected, concerted activities.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 12
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About this Author

Mark Theodore, Employment Attorney, Proskauer Rose
Partner

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. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

310-284-5640
Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

212.969.3507
Makenzie D. Way Labor & Employment Litigation Law Clerk Proskauer Rose Boston, MA
Law Clerk

Makenzie Way is a law clerk in the Labor Department and a member of the Employment Litigation & Arbitration Group. Makenzie also has experience working as a mediator with the Penn Law Mediation Clinic.

Makenzie earned her J.D. from the University of Pennsylvania Law School, where she was a deans scholar and editor of the University of Pennsylvania Journal of Law and Social Change (online). During law school, Makenzie earned a Certificate in Alternative Dispute Resolution after completing the Alternative Dispute Resolution Transnational Program at Waseda Law School in...

617-526-9841
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