Monday, May 16, 2022

Don’t ask employees about their problems after a union comes knocking

"I'm here to listen."

It's an innocuous enough statement for management to make to employees. What could possibly go wrong when a manager tells employees she's there to "listen"?

If a union representation petition is pending, the answer is a lot.

On May 3, a group of Apple Store employees in Towson, Maryland, filed a petition with the NLRB to be represented by the International Association of Machinists and Aerospace Workers.

Ten days later, Deirdre O'Brien, Apple's Senior Vice President Retail + People, paid that same store a surprise visit and told its employees that she was there to "listen".

The problem with Ms. O'Brien's statement to the organizing employees is that it's unlawful to solicit grievances from employees during an organizing campaign, which can be construed as a promise to the employees to fix their problems to their satisfaction or benefit. A promise is one of the cornerstones of illegal communications that employers cannot make during union organizing.

For example, five years ago, in Mek Arden, LLC, the NLRB considered whether the question, "How are things going?" when asked during union organizing constituted an unlawful promise and therefore an unfair labor practice. The Board concluded that it did.

Mek Arden's COO visited the company's facility during a union organizing campaign. During his visit he greetedv an employee with the question, "How are things going?" The employee responded with complaints about complaints about nursing ratios and the availability of supplies; the COO replied that he'd look into it.  He claimed his question — "How are things going?" — was nothing more than a common icebreaker and that he never promised or otherwise represented to remedy the employee's complaint. 

Mek Arden applied the Board's holding in Maple Grove Health Care — that an employer cannot solicit grievance from employees during a union organizing campaign — in holding that the "How are things going" question was an illegal promise.
Absent a previous practice of doing so … the solicitation of grievances during an organizational campaign accompanied by a promise, expressed or implied, to remedy such grievances violates the Act. … [I]t is the promise, expressed or implied, to remedy the grievances that constitutes the essence of the violation. … [T]he solicitation of grievances in the midst of a union campaign inherently constitutes an implied promise to remedy the grievances. 

Deirdre O'Brien does have a "previous practice" of telling Apple employees to talk to their managers about pay and other concerns. Whether that rebuts any presumption of an illegal promise set forth by her statement to employees in that specific store that she was there to "listen" will be a question for an administrative law judge and the NLRB if an unfair labor practice charge is ultimately filed.

The takeaway for all employers is that once that union petition is filed you must tread very carefully in your communications with employees. There are specific rules as to what you can, and cannot, say. Unless all of your executives, managers, and supervisors understand these rules, you are taking a huge risk of an unfair labor practice charge and the remedies that could flow from it, including a potential bargaining order.