By Thursday of last week, we had already blogged that the week had been a busy one at the Biden National Labor Relations Board (“NLRB” or the “Board”) with the issuance of two decisions both expanding the scope of recoverable damages in charges brought before the NLRB and encouraging increased unionization by embracing micro-units. But the Board did not stop there.
By the end of the day Thursday, the NLRB had issued yet its third important decision of the week in Sunbelt Rentals, 372 NLRB 24 (2022) recommitting to its own timeworn intransigent disclosure requirements for employers before interviewing their union represented employees in matters before the Board.
In 1964, the NLRB issued its Johnnie’s Poultry decision requiring that, in balancing the threat of employer coercion against an employer’s right to investigate and defend against unfair labor practice (“ULP”) charges, employer representatives (e.g., lawyers and labor relations personnel) may only interview employees represented by unions in connection with investigating unfair labor practice charges after first:
1. communicating to the employee the purpose of the employer’s questioning;
2. assuring the employee that there will be no reprisal for refusing to answer any question or for any answer given; and
3. notifying the employee that participating is voluntary and obtaining the employee’s voluntary participation in the interview.
Johnnie’s Poultry, 146 NLRB 770 (1964). The mere failure to follow any of these precise requirements before an otherwise innocuous employee interview was deemed in and of itself a per se violation of the National Labor Relations Act (“NLRA”).
In the nearly sixty years since Johnnie’s Poultry, the decision has come under fire and been viewed in stark contradiction to the “totality of the circumstances” test employed by virtually all federal courts of appeal in determining whether employer questioning of unionized employees in other circumstances (other than in preparation for NLRB proceedings) was coercive. Indeed, five separate federal courts of appeal have declined to follow the bright-line Johnnie’s Poultry requirements test and held that the decision exceeds the power of the NLRB and/or observing that interviews in response to ULP charges are no more potentially coercive than other employee interviews, which are also equally protected under the NLRA.
In March 2021, the NLRB appeared poised in Sunbelt Rentals to overrule Johnnie’s Poultry when it certified two questions for briefing and Board consideration in light of a case where an employer’s attorney gave some disclosures and assurances to witnesses before conducting demonstrably noncoercive interviews, but appeared to have neglected to advise one witness that his answers to questions would not result in any reprisals, and then neglected to advise another witness that his participation was voluntary:
1. Should the Board adhere to or overrule Johnnie’s Poultry?
2. If the Board overrules Johnnie’s Poultry, what standard should the Board adopt in its stead?
What factors should it apply in determining the whether an employer has violated the Act when questioning an employee in the course of preparing a defense to an unfair practice allegation?
But the composition of the NLRB that certified the forgoing questions back in March 2021 was not the same Biden Board that ultimately answered “No, the Board shall not overrule Johnnie’s Poultry” to the first certified question in a split 3-2 decision last week in Sunbelt Rentals (thus mooting any consideration of the second certified question).
Regardless of one’s feelings concerning the merits of the Board’s rationale, Johnnie’s Poultry requirements are here to stay, at least as long as the Board is made up of a majority of pro-union Democrat appointed members. Thus, when investigating a ULP charge or other Board matter, employers must be mindful of the following directives from Johnnie’s Poultry or risk a finding of a per se unlawful violation of the NLRA:
[T]he employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his [or her] participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee’s subjective state of mind, or otherwise interfering with the statutory rights of employees.
Therefore, in situations involving contemplated interviews of unionized employees, employers need to first consider the Johnnie’s Poultry implication of the interviews, and thereafter, it is often advisable to prepare and present a Pre-Interview Notice And Acknowledgement Form to employees before commencing such interviews. Contact the author of this article or your CDF Labor Law attorney, if you need assistance in evaluating whether contemplated interviews implicate Johnnie’s Poultry concerns, assessing whether a Pre-Interview Notice And Acknowledgement Form should be used, and preparing the appropriate form for you.