“So Now You Want to Hear Us?” No Company Promises During Organizing Campaigns

A Certified Nursing Assistant (“CNA”) at a long-term care and rehabilitation center had workplace grievances and she, along with her coworkers, began an organizing campaign. One day, the chief operations officer (“COO”) asked the CNA about one of those specific complaints. The COO responded to her grievance by saying he would “follow up and look into” her concerns. Is this permitted? Not according to the National Labor Relations Board’s (“NLRB”) decision in Mek Arden, LLC d/b/a Arden Post Acute Rehab and Service Employees International Union, United Long Term Care Workers, 365 NLRB No. 109, a case handled by Weinberg Roger & Rosenfeld attorney, Manuel Boigues.

The NLRB applied its prior rule that if an employer lacks a practice of soliciting grievances, doing so during an organizing campaign accompanied by an expressed or implied promise to remedy such grievances violates the National Labor Relations Act (“Act”).

Such conduct interferes with employees’ rights to engage in concerted activity for the purpose of collective bargaining or other mutual aid and protection. Soliciting grievances in the midst of a union campaign inherently constitutes an unlawful implied promise to remedy the grievances. In Mek Arden, the employer made these implied promises to discourage support for the Union. 

Remember that during an organizing campaign, if (1) the employer solicits employee complaints, and (2) there is no prior practice of soliciting complaints in the same manner, an inference arises that the employer made an unlawful implied promise.

Solicitation of an employee complaint may come during a captive audience meeting, one-on-one, through a casual interaction, or in an email or a memo. Whether it is an express promise for better schedules, higher wages, or better benefits, or whether it is an implied promise based on soliciting employee complaints in the midst of an organizing campaign, an employer promise to employees made during the organizing effort violates the Act.

If you think employees in your organizing unit may have been subjected to unlawful promises during an organizing drive or if you have other questions, please contact your Union counsel.

By David Fujimoto | October 4, 2017

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