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NLRB Sustains Employer's Pre-Election Solicitation of Grievances Consistent With Prior Practice

September 8, 2003

During the period prior to a representation election conducted by the National Labor Relations Board (the "NLRB") to determine whether a group of employees desire union representation, the National Labor Relations Act (the "NLRA") imposes certain legal constraints upon an employer's conduct, intended to avoid interference with the employees' exercise of free choice in the election. During this so-called "critical period," for example, an employer is ordinarily prohibited from soliciting grievances from employees. The solicitation of grievances during this period is improper because, in the view of the NLRB, it creates an implied promise that if the employees vote against union representation the employer will remedy the grievances. On the other hand, an employer which has a past policy and practice of soliciting employee grievances may continue such a practice during a union organizing campaign, provided it does not "significantly alter" its manner and method of doing so. Thus, in a recent decision, the NLRB ruled that an employer which had a longstanding practice of soliciting employee grievances was permitted to continue to do so during the pre-election period without violating the NLRA. Wal-Mart Stores, Inc., Case 21-CA-34515 (August 21, 2003).

In Wal-Mart, a local of the United Food and Commercial Workers union filed a petition to represent employees of the automotive tire and lubrication services department of a Wal-Mart store in Lake Elsinore, California. Wal-Mart had a program called "Coaching By Walking Around" ("CBWA"), under which mangers would spend time with employees, being available to listen, advise, and instruct. Wal-Mart's practice in response to union activity at any store was to send managers to the store to engage in an election campaign and to perform CBWA. Pursuant to this practice, managers visited the Lake Elsinore store five days per week for several hours. During one of these visits, a district manager, Kevin Curran, asked an employee whether Wal-Mart "could do anything for the [tire and lubrication] employees." The employee complained that the employees needed certain tools and that the auto bay door was sticking. Curran asked the employee to point out the needed tools from a catalogue; the tools were provided about a month later and the door was repaired.

The union claimed that these actions constituted an unlawful solicitation of grievances, and an Administrative Law Judge ("ALJ") agreed. The ALJ observed that Wal-Mart had been "generally attentive to employees' needs" in the past and that it was not unusual for managers, during CBWA visits, to ask employees what Wal-Mart could do for them. However, the ALJ found that Wal-Mart violated the NLRA because the frequency of managerial visits to the store increased during the union campaign and because there was no evidence that deficiencies in tools and equipment had been remedied so quickly in the past. Accordingly, the ALJ concluded that Wal-Mart's solicitation of grievances was "extraordinary" in its "pervasiveness and the managerial level involved."

Wal-Mart appealed and the NLRB reversed the ALJ's decision. The NLRB acknowledged that the increase in CBWA activity raised a "suspicion" that the method and manner of soliciting grievances changed during the organizing campaign, but concluded that the record did not support such a suspicion. In particular, the NLRB observed that the CBWA program existed long before the onset of union organizing activity and that it was not unlawful for managers to engage in CBWA along with election campaigning and to ask employees the same kinds of questions as in the past. Curran's inquiry to employees, for example, was consistent with the kinds of inquiries he made in prior visits. In addition, to demonstrate that its practice had not changed, Wal-Mart presented evidence of past tool orders and facility repairs. While the NLRB's General Counsel, prosecuting the case, suggested that there was no evidence that deficiencies had been so quickly remedied in the past, the NLRB reasoned that in order to establish a violation it was incumbent on the General Counsel to show that, in fact, the deficiencies at issue were corrected more quickly than in the past. Because the NLRB found no evidence that Wal-Mart's solicitation of grievances was materially different than its practice prior to the union activity, it dismissed the complaint.

The NLRB's decision in Wal-Mart underscores the importance for employers to maintain a practice of communicating openly with employees concerning their needs and remedying their complaints. Provided it can show the existence of such a practice, an employer will remain free to continue to solicit and address grievances even after the onset of union activity. More fundamentally, a practice of open communications is often an important and effective means of discouraging employees from turning to an outside agent, such as a union, to assert and seek redress for their complaints.