In a decision instructive to employers facing sudden, emergency conditions requiring immediate response, a divided National Labor Relations Board (NLRB) in Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc., 372 NLRB No. 37 (December 28, 2022), expanded an employer’s obligation to bargain with a union in
Articles Discussing The National Labor Relations Board (NLRB).
The Practical NLRB Advisor: Fall 2022
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Summer 2022 issue of the Practical NLRB Advisor. In this issue, the Advisor takes a small departure from our usual practice of providing readers a snapshot of, and insights into, the current state of U.S.
NLRB Refuses To Overturn Johnnie’s Poultry Interview Disclosure Requirements Despite Heavy Criticism
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.
NLRB Returns to Specialty Healthcare Bargaining-Unit Determination Standard
In a decision impacting employers that face a petition for election that seeks to represent part of the workforce, a divided National Labor Relations Board (NLRB) returned to its former Specialty Healthcare standard to apply to bargaining-unit determination cases in American Steel Construction, Inc. (372 NLRB No. 23).
NLRB Defends Doctrine that Protects Employees from Coercion
Last week, the National Labor Review Board(NLRB) upheld rules that aim to protect workers from coercive questioning and intimidation from their employers. The NLRB’s decision sustained the Johnnie’s Poultry doctrine, which limits how companies may interrogate their workers after facing allegations of unfair labor issues. While it is important
Busy Week at the NLRB
Earlier this week, the National Labor Relations Board (“NLRB”) issued two important decisions that California employers should be aware of:
NLRB Adds Consequential Damages to Its Weapons Cache
On December 13, the NLRB greatly increased the scope of its power and reach, by determining that
Budget Issues Causing Problems at NLRB
Although the National Labor Relations Board has been one of the most active and aggressive federal labor/employment agencies since Biden took control of the Executive Branch almost two years ago, there is trouble brewing. The NLRB has had the same $274 million dollar budget since 2014 according to its General Counsel Jennifer Abruzzo. The lack of a budget increase is now causing the NLRB to consider furloughing career agency employees. At the same time, the union for the NLRB workers publicly blasted the Board Administration, and more specifically GC Abruzzo, for their positions at the bargaining table on Thursday via its Twitter page @TheNLRBU.
In a letter to the House and Senate Appropriations subcommittees responsible for NLRB funding, co-authored by NLRB Chair Lauren McFerran and General Counsel Abruzzo, explained that the budget paralysis, combined with inflation, has substantially reduced the NLRB’s purchasing power to just 75% of what it was in 2014 and that additional funding will be needed to keep the NLRB at status quo in light of $18.7 million in new expenses for required pay increases, non-labor inflation, and upcoming field office relocations. These increased expenses, says the NLRB, are beyond its control and, absent Congressional approval of a sufficiently increased budget, it will have to furlough NLRB employees. Of note, the letter cites a $10.7 million increase in labor costs stemming from a 4.6% raise to its workforce that goes into effect in 2023 and emphasizes that the NRLB has “exhausted its ability to absorb cost increases through staff attrition and operational efficiencies,” suggesting the NLRB is already running a lean operation.
FTC and NLRB Announce Interagency Cooperation in the “Gig Economy”
On July 19, 2022, the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) signed a four-page Memorandum of Understanding (MOU) regarding information sharing, cross-agency training, and outreach in areas of common regulatory interest, focusing on the “gig economy.” The agencies identified the following areas of
NLRB Reaffirms Regional Directors’ Discretion to Dismiss Election Petitions Absent a Hearing
On June 15, 2022, in Rieth-Riley Construction Co., Inc., 371 NLRB No.
NLRB General Counsel Continues Push for Extraordinary Remedies
On June 23, 2022, National Labor Relations Board General Counsel Jennifer Abruzzo released Memorandum GC 22-06, relating to her efforts “to secure full remedies” in settlements with the Board. This follows on her prior memorandum of September 2021, in which she urged the Board’s regional attorneys to pursue aggressively
NLRB General Counsel Issues Memo on Securing Full Remedies in Settlements
On June 23, 2022, National Labor Relations Board General Counsel Jennifer A. Abruzzo issued Memorandum GC 22-06 advising Regions that they may seek a judgment to force employers to comply with the specific terms of settlement agreements in unfair labor practice (ULP) charges rather than a default judgment.
NLRB’s Top Prosecutor Seeks to Muzzle Employers by Banning Employee Meetings
Executive Summary: In an April 7, 2022 memo from the NLRB, General Counsel Jennifer Abruzzo (“Abruzzo”) announced her intent to challenge employers’ long-standing practice of holding informational meetings regarding union organizing (which she calls “captive audience” meetings).
NLRB General Counsel Abruzzo Seeks to Limit Long-Standing Employer Free Speech Right
On April 7, 2022, General Counsel (GC) Jennifer A. Abruzzo released Memorandum 22-04, The Right to Refrain from Captive Audience and other Mandatory Meetings.
The Practical NLRB Advisor – Issue 20, Spring 2022
In This Issue Brian in Brief More Pro-Labor GC Memos Issued A Slew of Activity at the Board Union Membership Down, Public Opinion Up? Other NLRB Developments
The Practical NLRB Advisor: Spring 2022
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Spring 2022 issue of the Practical NLRB Advisor. In the last issue of the Practical NLRB Advisor we detailed the aggressive agenda of the Board’s newly minted general counsel (GC) and her apparent quest to