The NLRB rang in the New Year by examining what constitutes an impression of unlawful surveillance. In Dignity Health d/b/a Mercy Gilbert Medical Center, 370 NLRB No. 67 (January 6, 2021), the Board reaffirmed helpful guidance for employers regarding the dos and don’ts in the context of union organizing campaigns.

Specifically, the Board held that a supervisor violated Section 8(a)(1) of the Act by creating the impression of unlawful surveillance when she told an employee that she was aware of his union involvement, but otherwise failed to provide context as to where or how the information was obtained. The Board also found that persistent questioning of an employee pertaining to the union by high-level management constituted unlawful interrogation under the Act.


In July 2018, the employer – a hospital and healthcare facility operator – began receiving reports of union activity by employees, and commenced a responsive information campaign regarding why it believed unionization was inappropriate for its employees.

At an employer-held meeting on the issue of organizing, a supervisor “outed” an employee as having been contacted by the union and being involved in the organizing. To that point, the employee’s union activity was largely unknown. The employer learned of the activity through video supplied by another employee, but did not reveal that to the employee who was outed.

One month later, the employer approached that same employee at his workstation and repeatedly asked him about his union involvement. When the employee denied his union affiliation, the employer began repeatedly asking him to confirm his name – noting each time that the same name had been flagged as the culprit of the union organizing efforts. Following this incident, the employee sent a group email accusing the employer of unlawfully inquiring into his organizing efforts.

The union then filed an unfair labor practice charge. The ALJ ruled that the employer violated the Act by giving the unlawful impression of surveillance and by interrogation.

Board Held the Employer’s Failure to Identify Its Source of Knowledge Provided Reasonable Grounds to Support Impression of Surveillance

The NLRB General Counsel asserted that the employer’s conduct unlawfully created the impression that the employee’s protected activity was being unlawfully monitored. In response, the employer argued its conduct was merely a vague gesture that could not reasonably create the impression of unlawful surveillance.

The Board disagreed. Drawing on a 2007 Board decision, the Board explained that, “[w]hen an employer tells employees that it is aware of their protected activities, but fails to identify the source of this information, an unlawful impression of surveillance is created because employees could reasonably surmise that employer monitoring has occurred.”  Conley Trucking, 349 NLRB 308, 315 (2007).

The Board concluded that it was reasonable for the employee to conclude that the employer’s knowledge had come from surveillance, since the supervisor failed to otherwise identify the source of her knowledge after singling out the employee during the pre-shift meeting.

The Board Also Found That Repeated Questioning by Management Constituted Unlawful Interrogation

The complaint also alleged that senior management violated the Act because it unlawfully interrogated the employee, by asking him repeatedly if he had heard about the Union, and if he was the individual who was flagged as the union organizer.

The Board agreed, finding that, based on the totality of the circumstances, the employer’s conduct was reasonably likely to restrain, coerce, or interfere with the employee’s right to engage in protected, concerted activity. In so deciding, the Board noted that while the questioning took place in a public area – the employee’s workstation – it remained unduly coercive due to the nature of the repetitive questioning, the insistence that the employee admit his affiliation or guilt, and the power imbalance between the parties involved.


This decision provides important guidance to employers as to when their conduct may tend to interfere with employees’ exercise of protected, concerted activities – which is particularly apt during a union organizing campaign.

First, the allegation of “impression of surveillance” is one of the more nuanced unfair labor practices. Under such an allegation, the employer is attempting to provoke a reaction by letting the employee know about his or her union activities. When addressing an employee’s union affiliation or organizing activities, the employer should not withhold the source of the information, as doing so likely will create the impression that the employee’s activities are being monitored and the employee is being subjected to unlawful surveillance.

Second, unlawful interrogation by employers – which also violates the Act – need not be confined to “closed door” conversations in formal settings. Rather, the test for interrogation is based on the totality of the circumstances, taking into consideration the power imbalance between the parties, the repetitiveness of the questioning, and the length of time over which the questioning took place. Employers should thus avoid persistent questioning of employees with regard to their protected, concerted activities.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.