NLRB Reaffirms Safeguards for Questioning Employees in Preparation for NLRB Proceedings

By Chad Horton - Shawe & Rosenthal LLP

December 16, 2022

On December 15th, the National Labor Relations Board (NLRB or the Board) reaffirmed its Johnnie’s Poultry standard for analyzing an employer’s questioning of employees in preparation for NLRB proceedings. Employers must provide a list of assurances to employees and the failure to recite even one of the assurances shall render such questioning per se (or automatically) unlawful.

History: In 1964, the Board issued its decision in Johnnie’s Poultry. That decision balanced an employer’s legitimate right to prepare for NLRB proceedings with the inherent danger of coercion that could exist in such questioning. To balance those countervailing rights, the Board required an employer to:

•    Communicate to the employee the purpose of the questioning.
•    Assure the employee there will be no reprisals.
•    Obtain the employee’s participation on a voluntary basis.
•    Conduct the questioning in a context free from employer hostility to union organization and in a manner that is not itself coercive.
•    Avoid prying into other union matters, eliciting information concerning an employee’s subjective statement of mind, or otherwise interfering with employees’ statutory rights.

Once again, if an employer failed to provide even one of the above safeguards, the Board would consider the questioning per se unlawful even if all other safeguards were provided.  While Johnnie’s Poultry has remained “good law” before the Board, some courts have criticized its per se standard and applied a totality-of-circumstances test, which did not necessarily require all of the safeguards to be met, to determine if an employer’s questioning of an employee in preparation for a NLRB proceeding violated the National Labor Relations Act (NLRA). Last year, the Board invited briefs asking if it should adhere to or overrule Johnnie’s Poultry.

This Decision: In reaffirming Johnnie’s Poultry, the Board concluded that the decision appropriately balances employees’ Section 7 rights under the NLRA, employers’ legitimate need to question employees, and the Board’s institutional interests by ensuring the integrity of its processes. The Board rejected a totality-of-circumstances test, reasoning that test and other approaches are “inferior” to the existing Johnnie’s Poultry standard. Thus, moving forward, an employer’s failure to provide even one of the Johnnie’s Poultry safeguards will result in the Board finding that the questioning of the employee in preparation for a NLRB proceeding is per se unlawful. In the current case, Sunbelt Rentals, Inc.,  the employer therefore violated Section 8(a)(1) of the NLRA when its attorney failed to tell an employee that his answers would not affect his job, and when the attorney failed to advise a second employee that his participation in the questioning was voluntary.

Takeaway: Unlike recent Board decisions, this case does not create new law, new remedies, or represent a return to previously overruled case law. Rather, the decision reaffirms longstanding Board precedent. Employers should also remember that this decision pertains only to the narrow circumstances of questioning employees in preparation for NLRB proceedings – it does not apply to typical workplace investigations. But if an employer must question a rank-and-file employee in preparation for a NLRB proceeding, it must be sure to provide all Johnnie’s Poultry safeguards because failure to provide even a single safeguard will result in a finding that the questioning violated the NLRA.

www.shawe.com