As we updated our readers last week, the National Labor Relations Board (NLRB or the “Board”) ended 2022 with a series of decisions that will impact employers going into 2023 and beyond.
Among those decisions was strong guidance from the Board regarding employers’ obligations when interviewing union-represented employees. By way of background, employers facing unfair labor practice charges before the Board often find it necessary to interview union-represented employees as part of their investigation and defense against such charges.
In 1964, the NLRB issued its “Johnnie’s Poultry” decision requiring the employer’s representatives (e.g., labor relations personnel and attorneys) to make certain disclosures to union-represented employees in connection with investigating unfair labor charges before interviewing them, including:
(1) Communicating to the employee the purpose of the employer’s questioning;
(2) Assuring the employee that the employer will not retaliate if the employee refuses 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 ostensible purpose of this set of required disclosures is to protect employees against the threat of employer coercion. Under this decision, an employer’s failure to explicitly make such disclosures is by itself, a per se violation of the National Labor Relations Act (NLRA).
Over the past several decades, many federal courts—including five separate federal Courts of appeal—have criticized the Johnnie’s Poultry decision and refused to follow it. These courts reason that not all union-related questioning is unlawfully coercive, and that such a bright-line rule disregards the circumstances surrounding the interview and ignores the realities of the workplace. Some courts conclude that the NLRB exceeded the scope of its statutory authority in adopting the Johnnie’s Poultry rule, and that a more flexible rule (i.e., totality of the circumstances or a “rebuttable presumption” standard) should instead govern such interviews.
After years of judicial scrutiny of the Johnnie’s Poultry rule, the NRLB appeared poised to overturn it when it certified two questions for briefing and consideration in a case where an employer’s attorney provided some disclosures and assurances to witnesses before conducting clearly non-coercive interviews, but failed to provide the exact disclosures required by the bright-line rule. In that case, Sunbelt Rentals, 372 NLRB 24 (2022), the Board considered two questions: (1) whether the NRLB should continue to follow Johnnie’s Poultry; and (2) if not, what standard should apply instead?
In a 3-2 decision—which was split down party lines—the NLRB upheld Johnnie’s Poultry and reaffirmed “its longstanding approach to protecting employees from coercion when they are interviewed by employers preparing for unfair labor practice proceedings before the Board.”
The pro-union Democratic majority found that the Johnnie’s Poultry standard effectively balances employers’ legitimate need to prepare a defense to an unfair labor practice allegation with employees’ statutory right to engage in protected concerted activity free from employer interference.” Id. The pro-management Republican minority agreed that such questioning “poses an inherent danger of coercion,” but recognized that “employers have a legitimate need to ask those questions in order to prepare their defense.”
The dissent instead followed the guidance of numerous federal courts to conclude that the NLRB lacks the statutory authority to hold that questioning is per se coercive unless it strictly complies with the Johnnie’s Poultry safeguards, even when this results in disregarding circumstances indicating that the specific questioning was not coercive. The dissent, along with many legal observers, urged the NRLB to adopt an alternative standard—specifically, a “rebuttable presumption” standard whereby unlawful coercion is presumed where an employer fails to follow the Johnnie’s Poultry standards, but an employer may rebut such presumption by showing that its questioning was not coercive under the totality of the circumstances. Such a standard would have provided employers with more flexibility to conduct interviews as part of its investigation into an unfair labor charge, without the threat of a per se violation of the NLRA if it fails to make the required disclosures but nonetheless conducts the interview in a non-coercive manner.
It appears that Johnnie’s Poultry is here to stay for the foreseeable future. Employers investigating unfair labor charges must ensure that interviews conducted during their investigation are done in accordance with Johnnie’s Poultry. Employer representatives tasked with conducting such interviews need to familiarize themselves with the disclosure requirements and should take steps to document compliance. While the Sunbelt decision may be disappointing to employers, it nevertheless reaffirmed an employer’s ability to interview its union-represented employees as part of an investigation into unfair labor charges so long as it adheres to the rules set forth in Johnnie’s Poultry.