The National Labor Relations Board (NLRB) has raised the possibility that it might make changes in its Johnnie’s Poultry standards, which establish safeguards to reduce the possibility an employer, while questioning an employee in preparation for a trial or hearing, might interfere with, restrain, or coerce employees in the exercise of their Section 7 rights, and thereby violate of the National Labor Relations Act (NLRA). Kauai Veterans Express Co., 369 NLRB No. 59 (Apr. 16, 2020).
The NLRB did not change the standard in Kauai Veterans Express Co. because neither party to the case asked it to do so.
In Johnnie’s Poultry, 146 NLRB 770 (1964), the NLRB held that, before asking the employee any questions, the employer must (1) inform the employee of the purpose of the questioning; (2) assure the employee that no reprisals will take place for refusing to answer any question or for the substance of any answer given; and (3) obtain the employee’s participation in the interview on a voluntary basis. Even if an employer takes these steps, the employer still may violate the NLRA if the “questioning … [does not] occur in a context free from employer hostility to union organization and … [is] not by 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.”
In Kauai Veterans Express Co., the NLRB held that the employer had unlawfully polled employees about their union sympathies in violation of the NLRA when its attorney prepared declarations for them to sign (stating they did not support the union), because the employer did not show it complied with the safeguards in Johnnie’s Poultry.
The NLRB noted that the Second, Fifth, Seventh, and Eighth Circuit Courts of Appeals have disagreed with the Johnnie’s Poultry standards, which suggests that the NLRB’s possible change(s) would mean only that the failure to provide the employee safeguards will not per se violate the NLRA, as was the situation in those cases. However, where questioning an employee implicates protected concerted activity, it may be difficult to establish the investigation was not a coercive interrogation without written evidence the employee was given assurances. Under those circumstances, use of the Johnnie’s Poultry safeguards should continue in order to avoid (or defend against) unfair labor practice charges alleging unlawful employee questioning.
Please contact a Jackson Lewis attorney with questions about this or other NLRB or NLRA issues.