Quizzing a Worker About Union Vote—Coercive or Casual?

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By Lawrence E. Dubé

A nursing home illegally interrogated a worker by asking how he intended to vote in an upcoming election on union representation, a divided National Labor Relations Board said.

The board ordered Novato Healthcare Center to post a notice promising employees that it will not interrogate them about their union activities ( Novato Healthcare Ctr. , 2017 BL 363915, 365 N.L.R.B. No. 137, Board decision 9/29/17 ).

The split decision on the employer’s questioning of employee Narvius Metullus shows that board members continue to disagree about how to apply basic rules on campaign conduct in real-world situations.

Claim Arose in Union Organizing Campaign

NUHW prevailed 140-81 in an October 2015 vote by Novato’s service and technical employees.

However, the union alleged that the employer committed unfair labor practices, and the board sustained an administrative law judge’s findings the company suspended and discharged several employees because of their union activity.

The board split on the claim that Novato unlawfully interrogated Metellus.

Board Split on Coercive Effect of Questioning

Metellus made no secret of his union sympathies, and wore a union lanyard and pins before the NLRB election, according to the ALJ.

Ten days before the vote, Novato’s staff development director Gay Rocha asked Metellus in a hallway conversation how he intended to vote. Rocha warned that the union could take a portion of his pay if it won the election, but Metellus said he wasn’t worried and would continue to support the National Union of Healthcare Workers (NUHW-CNA).

NLRB Members Mark Gaston Pearce (D) and Lauren McFerran (D) said the executive’s questioning tended to coerce the employee and it therefore violated the National Labor Relations Act.

But Chairman Philip A. Miscimarra (R) said casual question to one employee was not an unfair labor practice.

All three board members relied on a 1984 board ruling on interrogations— Rossmore House. However, they disagreed on how the precedent applied to the case before the board.

In Rossmore, the board said it would examine the totality of the circumstances in gauging whether questioning an open and active union supporter violates the NLRA.

Pearce and McFerran said Rocha was a high-level executive who didn’t have a regular working relationship with Metellus. Rocha’s status and her pointed question about the employee’s voting intention had “a uniquely coercive tendency” that made the executive’s conduct unlawful, the board majority said.

Miscimarra took a different view. The chairman said there was nothing in Rocha’s questioning that would have made Metellus fear the executive was looking for information to use against him or any other employee.

The chairman, who will leave the board when his term ends in December, said the NLRB has frequently allowed employers to conduct “back-and-forth exchanges” with employees who are openly supporting a union. Rocha “simply sought to engage Metullus in a lawful conversation about the union campaign,” Miscimarra said.

Latika Malkani, a partner at Siegel Lewitter Malkani who represented the union, acknowledged Miscimarra’s reservations about the interrogation claim. However, she said the board majority properly concluded that questioning an employee about his voting preference before an election can compromise the NLRB’s secret ballot process, and it should be considered illegal.

Attorneys for Novato Healthcare Center did not respond to a request for comment on the decision.

NLRB attorney Marta Novoa represented the board’s general counsel. Siegel LeWitter Malkani in Oakland, Calif., represented the union. Foley & Lardner in Los Angeles represented Novato Medical Center.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Terence Hyland at thyland@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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