Private employees have the right to engage – or not to engage – in activities in support of a union or each other relating to wages, hours and working conditions. It’s unlawful for private employers to “interfere” with those rights. Spying on employees or even just creating the impression of surveillance has been held to be unlawful interference by the National Labor Relations Board (“NLRB”), the federal agency responsible for enforcing the National Labor Relations Act.
Words Among Friends
In a recent decision by the NLRB, a hospital got itself in trouble when one of its directors was talking with an employee, who was a friend, in a way that the NLRB said created an impression that the employee was under surveillance – even though he was not. Here is what was said between the two friends:
In one conversation, the employee, who was an active union supporter, told the director that the union was planning several events in connection with the organizing drive, and he volunteered that “if management would have listened to their employees, the union would never be here.” The director responded, “I heard your name; your name has been popping out a lot.”
A few days later, a second conversation occurred after the employee had been quoted in the local newspaper about the union campaign. The newspaper article quoted him as stating that he would like to see certain improvements in his working conditions and that “the Union can make things better for the workers and for the patients.” Shortly after the article was published, the director commented as the employee passed him in the lunch room, “Oh, it’s the famous boy.” The director then informed him that the director of nursing had removed copies of the newspaper containing the article from the lobby of the facility, distributed a memorandum regarding the article to other members of management and mentioned the employee by name several times at a management meeting. The director then told the employee to “just watch your back, be careful, careful about what you say… do what you have to do, come to work early, and then just…do your job and go home” and also suggested that he “tone it down a little bit” and to “keep it under wraps.”
The Impression of a New Level of Monitoring
The NLRB found that the director’s statements that the employee should “watch his back, be careful,” “tone it down” and “keep it under wraps” would reasonably cause the employee to assume that his union activities were under surveillance by the hospital. The NLRB relied on previous cases that found unlawful surveillance was created by management statements such as: “Watch your back, watch it close, they will be out to get you” and repeated statements to an employee that the manager had heard “rumors” of the employee’s protected activity; and “Be careful, management’s watching you.” The fact that the employee and the management official were friends made no difference to the NLRB. In the opinion of the NLRB, the director’s statements to his friend could reasonably be interpreted as a warning that the hospital was moving from routine observation to closely monitoring the degree and extent of his union activity, open or not, and if he continued to engage in such activity, he could face reprisals.
Lessons for Employers
The intent to spy on employees is not necessary for a finding of unlawful surveillance. Merely creating the impression of surveillance is enough to get an employer in trouble. Management needs to be sensitive to the fact that even among friends in the workplace, words exchanged that relate to ongoing issues involving unions or wages, hours and working conditions can create the wrong impression.