Employer that Revealed Anonymous Intelligence About Work Stoppage Created Unlawful Impression of Surveillance: NLRB | Practical Law

Employer that Revealed Anonymous Intelligence About Work Stoppage Created Unlawful Impression of Surveillance: NLRB | Practical Law

In Greater Omaha Packing Co., Inc., the National Labor Relations Board (NLRB) clarified what factors tend to show, and separately do not preclude, conclusions that an employer created an unlawful impression of surveillance under the National Labor Relations Act (NLRA). The NLRB held that an employer's statements to employees accusing them of leading or helping to organize a work stoppage, and the employer's refusal to identify the source of its knowledge, created the unlawful impression of surveillance in violation of the NLRA.

Employer that Revealed Anonymous Intelligence About Work Stoppage Created Unlawful Impression of Surveillance: NLRB

by Practical Law Labor & Employment
Published on 18 Mar 2014 • USA (National/Federal)
In Greater Omaha Packing Co., Inc., the National Labor Relations Board (NLRB) clarified what factors tend to show, and separately do not preclude, conclusions that an employer created an unlawful impression of surveillance under the National Labor Relations Act (NLRA). The NLRB held that an employer's statements to employees accusing them of leading or helping to organize a work stoppage, and the employer's refusal to identify the source of its knowledge, created the unlawful impression of surveillance in violation of the NLRA.
On March 12, 2014, in Greater Omaha Packing Co., Inc., the panel (Board) heading the NLRB's judicial functions held that:
  • An employer's statements to employees accusing them of leading or helping to organize a work stoppage unlawfully created the impression that their NLRA-protected activities were under surveillance.
  • The employees' open participation in the activities did not preclude that conclusion.
(360 N.L.R.B. slip op. 62, 17-CA-085735, (Mar. 12, 2014).)

Background

In April 2012, a group of employees participated in a work stoppage protesting the speed of the employer's production line and other terms and conditions of their employment. A second work stoppage was planned for May 2012. On the morning of the planned May stoppage, one of the participants, Carlos Zamora, met with the plant manager and the fabrication manager at his supervisor's request. The plant manager asked Zamora twice what he wanted, adding that Zamora "had a good job, good insurance, and good overtime." When Zamora responded that he wanted an increase, he was discharged.
After Zamora's discharge, his supervisor, the fabrication manager and the plant manager met with two other employees, Degante and Salgado. The managers accused Degante of provoking other employees. After Degante denied this claim, the managers told Degante that they knew that he was the leader of the planned work stoppage. The managers then accused Salgado of being one of the organizers of the planned work stoppage. In both instances, the managers refused to identify the source of their information and then terminated Degante and Salgado.
The unfair labor practice complaint alleged that the plant manager's statements to Zamora constituted an unlawful interrogation about his protected activity. The NLRB Administrative Law Judge (ALJ):
  • Found that the employer unlawfully discharged Zamora and two of his colleagues in retaliation for engaging in protected concerted activity.
  • Reasoned that the statements made to the terminated employees immediately before or after their terminations were integral parts of the unlawful discharges and therefore any additional findings of violations based on these statements would be duplicative. Therefore the ALJ dismissed the allegations that the employer unlawfully:
    • interrogated employees about their protected concerted activities; and
    • created the impression that those activities were under surveillance.
The employer and the General Counsel each filed exceptions and related briefs challenging different parts of the ALJ's decision.

Outcome

The Board majority (Chairman Pearce and Member Hirozawa):
  • Applying Wright Line, affirmed the ALJ's decision that the employees' protected concerted activities were a motivating factor in the employer's decision to discharge them and that the employer failed to demonstrate that it would have discharged them in the absence of their protected activities (251 N.L.R.B. 1083 (1980)).
  • Contrary to the ALJ, held that the allegations that the employer violated Section 8(a)(1) by interrogating employees about their protected concerted activities, and by creating the impression that those activities were under surveillance, warrant consideration on the merits because:
    • the conduct, if found unlawful, would warrant separate remedial provisions (Benesight, Inc., 337 N.L.R.B. 282 (2001)); and
    • to summarily disregard independently coercive statements made immediately before or after an unlawful discharge would effectively privilege unlawful statements solely on the basis of their temporal proximity to another unlawful act.
  • Regardless of whether the plant manager's statements amounted to an interrogation about Zamora's or his colleagues' protected activity, held that the plant manager's statements were nonetheless coercive because they conveyed displeasure with the employees' protected concerted activity. Therefore these statements violated the NLRA.
  • Held that the record evidence supports the finding that the employer's statements to certain employees created the impression of surveillance in violation of Section 8(a)(1) of the NLRA.
The Board noted that:
  • The test to determine whether an employer has created an impression that its employees' protected activities have been placed under surveillance is whether the employees would reasonably assume from the employer's statements or conduct that their activities had been placed under surveillance (Donaldson Bros. Ready Mix, Inc., 341 N.L.R.B. 958 (2004)).
  • When an employer tells employees that it is aware of their protected concerted activities but does not tell them the source of that information, it violates Section 8(a)(1) because employees are left to speculate how the employer obtained the information, causing them to reasonably conclude the information was obtained through surveillance (McClain & Co., 358 N.L.R.B. slip op. 118 (August 31, 2012)).
  • Both Degante and Salgado would reasonably believe that the employer was monitoring their protected conduct because the managers refused to identify the source of their information that Degante and Salgado were leading or organizing the planned work stoppage. Therefore the managers' comments violated Section 8(a)(1) of the NLRA by creating the impression that the employees' protected activities were under surveillance.
The majority found that the following evidence supported the impression of surveillance allegation:
  • Although it was not necessary to establish the violation, the impression of surveillance finding was further supported by the managers' refusal to respond to the employees' requests that the managers' identify the source of their knowledge.
  • The record does not show that any work stoppage planning involved open employee conversations that could be overhead by the employer. Although testimony stated that some discussions about the stoppage occurred in the production line or break room in the presence of supervisors, it does not specifically show that Degante or Salgado's discussions about the stoppage occurred in earshot of the managers. The fact that the protected activity occurred in the workplace does not alone establish that the activity is sufficiently open to preclude an impression of surveillance finding.
  • Similar to this case, in Caribe Ford, an impression of surveillance violation was found where an employee spoke with coworkers at the facility about seeking out the union and shortly thereafter was accused of being the one trying to bring the union to the employer (348 N.L.R.B. 1108 (2006)).
  • The employer did not even argue that Degante or Salgado planned the work stoppage in the open. Therefore, in the absence of any argument or specific evidence that they planned the stoppage openly, the majority found no support for Member Johnson's contention that the allegations should be dismissed on this basis.
The majority found that the following evidence did not preclude an impression of surveillance:
  • Degante and Salgado had complained to their supervisors about wages and production line speeds. There were open discussions in the workplace about the planned work stoppage including on May 11 when Degante induced employees on two production lines to walk off.
  • By May 14, the news about the planned work stoppage was spreading. For example, when Salgado told several colleagues about it they told her that they already knew about it.
  • Employees and supervisors worked in close proximity, or even at the same table.
Further, the majority distinguished the following Board precedent holding that a supervisor's comments about employees' concerted activity did not reasonably give employees the impression of employer surveillance where they engaged in activity openly on the employer's premises and where their support of protected concerted activity was well known:
  • Sunshine Piping, Inc. A manager's statement that he knew roughly 80% of the shop had signed authorization cards was not an unlawful impression of surveillance where the employees' card solicitation activities were conducted openly on the employer's premises (350 N.L.R.B. 1186 (2007)).
  • SKD Jonesville Division, LP. An employer did not unlawfully create the impression of surveillance when a manager told an employee that he heard the employee was going to organize a union because:
    • it was reasonable to infer that the manager heard about the statement from the grapevine; and
    • the employee had been an open union supporter.
    (340 N.L.R.B. 101 (2003).)
Member Johnson dissented in part, concluding that:
  • A separate review of the impression of surveillance allegation was proper, without reliance on Benesight.
  • The impression of surveillance allegation should be dismissed based on the evidence of the openness of the protected concerted activity.

Practical Implications

The majority opinion in this decision narrows the preclusive effect of well-publicized plans for protected activity for impression of surveillance claims. The decision enhances the burden on employers to identify their sources for information about protected concerted activity and prove how openly employees discussed or engaged in protected concerted activity to avail them of defenses from impression of surveillance allegations.