NLRB: Union Employee Interview Disclosure Requirements Stand

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EFFECTIVE

December 15, 2022

  

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Key Takeaways

  • Employers interviewing union-represented employees regarding unfair labor practice charges must provide specific disclosures to avoid allegations of coercion and violations of the National Labor Relations Act.
  • Violations could result in a cease and desist or violation notice posted at the workplace in addition to compensating employees whose rights have been violated.

Discussion

The National Labor Relations Board (NLRB) reaffirmed its commitment to disclosure requirements for employers prior to interviewing union-represented employees in matters before the NLRB. Most employers are already familiar with the requirement in the Johnnie’s Poultry decision in 1964. To balance the threat of employer coercion with an employer’s right to investigate and defend against unfair labor practice charges, employers can only interview union-represented employees after: 1) communicating to the employee the purpose of the questioning; 2) assuring the employee there will be no reprisal for refusing to answer any question or for any answers given; and 3) notifying the employee that participation is voluntary and obtaining their voluntary participation. Failure to provide these disclosures could also be a per se violation of the National Labor Relations Act (NLRA).

The NLRB has been under pressure to overrule this standard since almost all federal courts of appeal instead use a “totality of the circumstances” test to determine whether questioning union employees in other circumstances is coercive. In Sunbelt Rentals, the NLRB declined to change the standard. Employers should continue to follow the requirements under Johnnie’s Poultry when investigating an unlawful labor practice or other NLRB charge and questioning union represented employees.

Action Items

  1. Prepare a notice and acknowledgment form containing the Johnnie’s Poultry
  2. Consult with legal counsel prior to investigating or defending unlawful labor practices or other NLRB charges.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase