Eight years of an Obama Board majority at the National Labor Relations Board (NLRB), now going into its ninth year under the Trump administration where Chairman Philip A. Miscimarra is still in the minority on the Board, have brought about some counterintuitive decisions and pro-union outcomes. One of the latest is Mek Arden, LLC d/b/a Arden Post Acute Rehab, 365 NLRB No. 109 (July 25, 2017).
In mid-June 2015, the chief operating officer (COO) of Mek Arden LLC, d/b/a Arden Post Acute Rehab, visited the company’s facility in Sacramento, California, during a union organizing campaign. As he walked around the facility greeting employees, he hailed one of the employees with the common ice-breaking opening line, “How are things going?” The employee responded by complaining about nursing ratios and the availability of supplies, to which the COO replied—again, using a common line—that he would “look into” it. The COO did not solicit a grievance or promise that he would remedy the unsolicited grievance or take any particular action—or even that he would ever get back to the employee. He simply said that he would “look into” it.
The COO’s alternative response, one supposes, could have been awkward stony silence or a lecture on how he was forbidden by the federal government agency responsible for enforcing the National Labor Relations Act (NLRA) from soliciting grievances—or perhaps simply a brush-off: "Gee, that's too bad." Who among us would have responded any differently than simply, "I'll look into that"—especially if not counseled with regard to the strained nuances of federal labor law where such a common response could be read to violate the law?
Two years later, on July 25, 2017, in Mek Arden LLC d/b/a Arden Post Acute Rehab, the two-member Board majority consisting of Mark Gaston Pearce and Lauren McFerran, over the dissent of Chairman Miscimarra, found the COO’s question about how things are going to constitute a violation of Section 8(a)(1) of the NLRA by unlawfully soliciting employee grievances and impliedly promising to remedy them. In the Board majority’s view, the COO’s offer to “look into [it]” impliedly offered to fix the grievance, whether the COO ever fixed, offered to fix, or intended to fix the grievance.
An administrative law judge (ALJ) had earlier concluded that no basis existed for a finding of a violation of the law's prohibition on soliciting grievances during the "critical period" preceding a union election. The Board majority, however, disagreed and found a violation. On the basis of other violations, the Board majority together with Chairman Miscimarra's partial concurrence and partial dissent overturned the union election results. But Chairman Miscimarra objected to the Board's finding that the COO had violated the NLRA by soliciting grievances.
Now of course, what I have left out of this discussion is that the employer was found by the ALJ and by all three Board members to have engaged in other conduct which violated the NLRA, including by unlawfully prohibiting the posting of union literature, removing union-related literature from a bulletin board, and prohibiting the wearing of union scrubs.
However, what sticks out like a sore thumb in this decision is the Board's finding that even a simple, friendly greeting of “how are things going?” can be broadly interpreted as triggering a violation of the NLRA’s anti-solicitation rule.
Using the "reasonably construe" prong of the Board's decision in Lutheran Heritage Village-Livonia, 343 NLRB No. 646 (2004) gives the Board an open-ended opportunity to substitute its interpretation of how employees may perceive (i.e., "reasonably construe") certain language, even in the absence of record evidence that any employee ever interpreted the language as “chilling” the exercise of protected concerted activity. The current Board parses words in handbooks, personnel policies, rules manuals, social media policies, and, as here in Mek Arden LLC d/b/a Arden Post Acute Rehab, actual comments made during ordinary workplace communications searching for alleged, isolated violations to serve as the basis for overturning union election losses and scheduling rerun elections. Until the new Board majority is confirmed and has the opportunity to overturn Lutheran Heritage, employees will remain at risk and employers will have to guess at what's next.