Thursday, February 26, 2015

NLRB to Employers: Be Careful How You Counsel and Investigate Employees

On February 2, 2015, the National Labor Relations Board issued a Decision and Order in the case of Grand Canyon Education, Inc. d/b/a Grand Canyon University, 362 NLRB No. 13, in which an educational employer was found to have committed several unfair labor practices in the course of counseling employees and investigating supervisory performance.  Among the unfair labor practices found to have been committed were promulgation of an unlawfully broad rule that prohibited employees who were the subject of counseling for performance or behavior problems from discussing the counseling with persons outside the management team.  This rule was found to have unlawfully restrained employees with respect to their right to engage in protected, concerted activities.  

Also found to be unlawful was a question asked to an employee in the course of an interview designed to elicit information concerning the performance of a supervisor.  When the employee volunteered during the interview that other employees had complained about the supervisor, the employer’s representative asked who they were.  This question was found to be coercive, despite the finding of the administrative law judge who heard the case that there was no nefarious purpose involved in asking the question.  The panel majority said that that finding was irrelevant, in that the focus of the inquiry was “whether the questioning would reasonably tend to coerce the employee in exercising her Section 7 rights”.  Member Miscimarra, dissenting as to this finding, responded as follows:  “When an employer conducts investigations that relate in part to the effectiveness (or lack of effectiveness) of a particular supervisor, and when the employer is informed that other employees complained about the supervisor, nothing in the Act makes it unlawful to ask for the names of these other employees.”  The NLRB panel majority found otherwise, however. 

Reasonably assuming that the Illinois Labor Relations Board and Illinois Educational Labor Relations Board are likely to make similar findings under similar circumstances, the lessons of the Grand Canyon case for Illinois public employers are that:  1) while an employer may require its managers and supervisors to maintain confidentiality regarding the content of employee counseling sessions, it may not require the employees to maintain confidentiality, because an employee’s choice to disclose to others, whether they be fellow employees or union representatives, what was said in a counseling sessions is a part of the employee’s exercise of his or her right to engage in protected, concerted activities; and 2) questioning of employees regarding employee complaints may violate the law, even when those complaints relate to the performance of supervisors and even when the object of the questioning is to elicit the names of others who have complained so as to permit the employer to investigate further the matter of how its supervisors are performing.  

The Grand Canyon case is yet another example of the increasing emphasis of NLRB decisions on the protection of the rights of non-union employees and the increasing likelihood that questioning of employees, even for ostensibly legitimate business purposes, will be found unlawful.  But because there are lawful ways to question employees, an employer seeking to question an employee about anything having to do with his or other employees’ activities in relation to others in the workplace should contact legal counsel for advice before proceeding.