HR Representative Violated NLRA While Interviewing Employees to Evaluate Their Supervisor: NLRB | Practical Law

HR Representative Violated NLRA While Interviewing Employees to Evaluate Their Supervisor: NLRB | Practical Law

The National Labor Relations Board (NLRB) recently held in Grand Canyon Education, Inc., that a human resources representative violated the National Labor Relations Act (NLRA) by inquiring about employees' views of their supervisor and requesting that employees keep their supervisor evaluation interviews confidential. 

HR Representative Violated NLRA While Interviewing Employees to Evaluate Their Supervisor: NLRB

by Practical Law Labor & Employment
Published on 24 Jul 2013 • USA (National/Federal)
The National Labor Relations Board (NLRB) recently held in Grand Canyon Education, Inc., that a human resources representative violated the National Labor Relations Act (NLRA) by inquiring about employees' views of their supervisor and requesting that employees keep their supervisor evaluation interviews confidential.
On July 23, 2013, the panel (Board) in charge of the NLRB's judicial functions issued an opinion dated July 12, 2013 in Grand Canyon Education, Inc., ruling in part that a human resources (HR) representative's interview of an employee to evaluate her supervisor's leadership skills and gauge team morale was an unlawful interrogation under the NLRA. The Board found the interview coercive in part because the HR representative:
  • Did not explain the nature of the interviews.
  • Did not state that the interview was voluntary.
  • Asked employees to keep matters discussed confidential even though the employees' critiques of their supervisor would be shared with higher-level management.
After the employer terminated three nonunion employees, they filed unfair labor practice (ULP) charges with the NLRB alleging that the terminations and various other actions by their employer violated the NLRA. The Board affirmed nearly all of an NLRB administrative law judge's (ALJ) determinations that were appealed, including that the employer had legitimate reasons for two of the terminations.
However, the Board overruled the ALJ by finding that an employee interview to evaluate a supervisor was coercive and violated the NLRA.
In particular the Board:
  • Noted that it applies a totality of circumstances test and considers the following factors to determine if an employee interview is an unlawful coercive interrogation:
    • whether there is a history of perceived hostility concerning employee rights;
    • whether the nature of the information sought is overall coercive;
    • whether the interrogator appears to be seeking information on which to base action against individual employees;
    • the identity and organizational level of the interrogator;
    • the place and method of the interrogation; and
    • the truthfulness or candor of the reply.
      (Rossmore House and Westwood Health Care Center.)
  • Found that:
    • the HR representative asked employees a standard set of questions to assess the supervisor's leadership abilities and team morale;
    • contrary to the ALJ's view, it was not obvious from the questions asked that the interviews were to assess the supervisor's performance; the HR representative did not state a purpose for the interview;
    • contrary to the ALJ's view, the interview was not voluntary based on the interviewed employee's testimony that she never felt uneasy, frightened or apprehensive meeting with the HR representative and answering her questions; the HR representative did not tell the employee that participation in the interview was voluntary or that there would be no repercussions from refusing to participate;
    • contrary to the ALJ's view, the interviewed employee's testimony that she subjectively never felt uneasy, frightened or apprehensive while meeting with the HR representative or answering her questions was irrelevant; the Board's test for unlawful interrogations is objective and considers only whether the questioning would reasonably tend to coerce an employee and discourage her from exercising Section 7 rights;
    • the employer demonstrated antagonism for employees exercising Section 7 rights, primarily through the reaction of the supervisor being evaluated to employee criticisms of management in employee e-mails (which, incidentally, prompted HR to evaluate her leadership skills) and secondarily through the HR representative requesting that the content of the interview be kept confidential;
    • the HR representative sought information about employees' protected concerted activity (complaining about their supervisors with co-workers); contrary to the ALJ's view, it was irrelevant that the HR representative deviated from her scripted questions and asked the employee to discuss co-worker complaints about the supervisor that she heard only after the employee volunteered that co-workers had complained to her about the supervisor;
    • the interviewer (HR representative), interview location (HR representative's office with the door closed) and nature (one-on-one) of the interview tended to be coercive; contrary to the ALJ's view that the interview was a routine supervisor evaluation to obtain personal feedback by an HR representative who was not threatening because she did not directly supervise the employee, the interview tended to be coercive because a person with general authority to recommend discipline and termination met the employee outside her regular work area with no other employees present;
    • the request that the employee keep matters discussed during the interview confidential even though the matters would be discussed with higher-level management was further evidence that the interview was coercive (the ALJ found that request to be an independent ULP but the Board did not rule on that issue because the employer did not appeal that finding); and
    • the employee's candor when answering the HR representative's questions was the only factor suggesting that the interview was not coercive but it did not overshadow findings on the other factors.
  • Held that the employer unlawfully interrogated the employee whose termination it affirmed was unlawful.
  • Declined to overrule the ALJ's rulings that the HR representative's similar questioning of other employees was lawful because the remedies for those prospective additional violations would be cumulative.
Like, Banner Health, the Board's decision in this case finds unexpected NLRA implications in routine HR processes in a nonunion workplace (see Legal Update, Employer Violated NLRA by Asking Employees Not to Discuss Ongoing Investigations with Co-workers: NLRB). Here, the fairly common HR practice of gathering feedback about a supervisor's performance and team morale transformed into an unlawful interrogation when the Board overruled several of the ALJ's findings on the record evidence. In this decision, the Board disclaimed an intention of discouraging employers from monitoring supervisors' performance including through interviewing employees, but did not outline how an employer may lawfully do so. For example, the Board did not identify:
  • What questioner could have been non-coercive. The ALJ suggested that a supervisor in the direct line of supervision would be coercive; the Board held that an HR representative outside of the line of supervision was coercive because she wielded some authority.
  • Where questioning would not be coercive. The ALJ found questioning in an HR representative's office behind a closed door was routine and therefore not coercive; the Board found the meeting coercive apparently because it was not the employees' regular work area and the door was closed.
  • How an HR representative can lawfully interview an employee to gather personal rather than group feedback about a supervisor. The Board appears to hold that a one-on-one meeting is, by its nature, coercive.
  • How an HR representative can lawfully ask an employee to identify employee complainants about workplace issues or witnesses to workplace incidents. The Board did not address how an employer can follow-up on the interviewed employee's hearsay statements about other employees' complaints or observations.
  • How an employer can disavow a supervisor's alleged ULPs and rebut the antagonism towards Section 7 activity that the Board imputes to an employer before it conducts interviews in part to evaluate the supervisor.
However, there are some practical takeaways from this decision. The Board's initial findings supporting its conclusion that the interview was coercive (that the employer failed to inform the employee why it was interviewing her, that her participation was voluntary and that she could refrain from participating without repercussions) suggest that the Board will tend to find any kind of employee interview coercive unless an employer begins the interview with a statement of lawful intentions and a disclaimer of coercive intentions akin to those in a Johnnie's Poultry Statement (see Standard Document, Employee Interview Statement for an Unfair Labor Practice Investigation (Johnnie's Poultry Statement)).
Short of providing a Johnnie's Poultry Statement, employers might consider:
  • Instructing interviewers of employees covered by the NLRA to:
    • explain the purposes of an interview before starting the questions;
    • disclaim intentions to infringe on employees' Section 7 rights; and
    • note that participation in an interview is voluntary or why it is compulsory in light of legitimate business concerns; and
    • be judicious when deciding whether to instruct an employee to keep matters discussed confidential. The Board may consider an improper confidentiality instruction evidence that an interview is an unlawful interrogation.
Court documents: