NLRB Reaffirms Rossmore Standard Concerning Legality of Employer Interrogation

In Matros Automated Electrical, 353 NLRB No. 61 (Dec. 8, 2008), the Board reaffirmed the Rossmore Standard to examine the legality of employer interrogation of employees. Here, the Employer was found to have committed an unfair labor practice. The Board described the applicable standard as follows:

The applicable test for determining whether the questioning of an employee
constitutes an unlawful interrogation was adopted by the
Board in Rossmore House, 269 NLRB 1176 (1984), affd.
sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). Under Rossmore House, the Board
considers whether, under the totality of the circumstances,
the questioning at issue would reasonably tend
to coerce the employee in the exercise of rights protected
by Section 7 of the Act. In analyzing alleged interrogations,
the Board considers such factors as

whether the interrogated employee
is an open or active union supporter, the background
of the interrogation, the nature of the information
sought, the identity of the questioner, and the place
and method of the interrogation. Id.; Stoody Co., 320
NLRB 18, 18–19 (1995). The Board has held that
questioning employees about whether they attended a
union meeting and what occurred at the meeting is an
unlawful interrogation. Resolute Realty Management
Corp., 297 NLRB 679, 685 (1990), and cases cited
therein.
Bloomfield Health Care Center, 352 NLRB No. 39, slip op.
at 1–2 (2008).

Applying these factors here, we affirm the judge’s
findings that Moskowitz unlawfully interrogated employees.
In a context that included other unfair labor
practices, including a threat of plant closure, Moskowitz,
the Respondent’s highest ranking official, and Mata, a
project manager, asked employee Wencewicz in the Respondent’s
office whether he was going to vote for
IBEW Local 3. Moskowitz also summoned Garay to his
office and asked Garay if he had attended an IBEW Local
3 meeting, and later asked Garay at a jobsite whether
he was going to vote “no” in the election. Moskowitz
further questioned employee Hodge at a jobsite whether
Hodge was on “his side,” a clear reference to whether
Hodge supported Moskowitz’ position against IBEW
Local 3, and Hodge untruthfully responded that he was
on Moskowitz’ side. There is no evidence that any of
this questioning occurred in the course of a friendly, casual
conversation. Furthermore, that such questioning
would reasonably be taken as coercive is supported by
the fact that Hodge failed to answer Moskowitz’ question
truthfully.
For these reasons, we affirm the judge’s finding that
Respondents Matros/BTZ unlawfully interrogated employees
in violation of Section 8(a)(1).

Mitchell H. Rubinstein

.