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Employer’s Interview Of Employees During Defense Of Unfair Labor Practice Violates Act, NLRB Rule

We already know that when it comes to the NLRB there already are several actions an employer can take that violate the NLRA, even though such actions would be perfectly acceptable under any other employment law.  And sometimes the actions are deemed unlawful even when they are not directly related to the NLRA.  Thus, we’ve seen how telling employees to maintain confidentiality during an investigation violates the Act.  So does having handbook provisions that are typical and normal for any workplace.  We also see how social media postings by employees that are critical of the employer can spell trouble for employers punishing employees for such postings.

A recent decision by the NLRB reminds us that some violations unique to the NLRA are not new.  In Tschiggfrie Properties, Ltd., 365 NLRB No. 34 (February 13, 2017) the employer was confronted with an unfair labor practice complaint primarily concerning the termination of an employee that was set for trial. As is typical in any legal proceeding, leading up to trial the employer representative and attorney interviewed an employee witness twice as part of the defense.  The General Counsel of the NLRB alleged these interviews violated the Act because proper assurances had not been given.

During the trial, the employee witness was asked whether the employer and employer’s counsel posed any questions about the union.  The employee testified, “yeah, a few, but not a lot.”  The General Counsel did not elicit any specific information about what the employee was asked during trial preparation.

The Administrative Law Judge concluded no violation had occurred because based on the record “[i]t is not possible to judge the lawfulness of a question under [the NLRB’s standard for coercion] without knowing what the question was.”  In other words, there was no proof in the record that any question was posed that could possibly coerce an employee under the Act.

On appeal, the NLRB reversed, finding the employer’s interviews with the employee violated the Act.  The NLRB recited the law concerning interviewing employees in defense of unfair labor practice cases:

When an employer interviews an employee about protected activity in preparation for an unfair labor practice hearing, ‘the employer must communicate the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis.’  Johnnie’s Poultry Co., 146 NLRB 770, 774-775 (1964). . .

The Board concluded that a violation had occurred because the employer  “questioned [the employee] about protected activity by asking him about the union campaign. . .”  This, of course, contradicts the record which did not support that any question regarding any employee’s protected activity had been posed.  Still, like so many other situations, the Board found a violation by incrementally stretching precedent to cover the situation despite a marked lack of proof.  It would appear now that absent proof the assurances were given then a violation will be found.

Of course, defending an unfair labor practice proceeding necessarily requires inquiry into matters that may involve protected activity and so it is always a good idea to give the Johnnie’s Poultry assurances.  Also,

  • Always get the assurances in writing.  In this case, the employee couldn’t remember what he had been told by the employer and employer’s attorney and having something in writing would resolve the issue.

  • Defense of an unfair labor practice is not the only proceeding where the assurances should be given.  It is the safe and prudent course of action to give the proper assurances when interviewing any union-represented employee as part of a workplace matter, whether it be a sexual harassment investigation or in preparation for an arbitration under a collective bargaining agreement.

© 2017 Proskauer Rose LLP.

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About this Author

Mark Theodore, Employment Attorney, Proskauer Rose
Partner

Mark Theodore is a Partner in the Labor & Employment Law Department in the Los Angeles office. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

310.284.5640