Category Archives: Investigations

Johnnie’s on the Spot; Board Reaffirms Standards for Employer Interrogations of Employees in Preparation for NLRB Proceedings

On the eve of the last day of Member Ring’s term, and in the third in a string of significant rulings by the National Labor Relations Board (“NLRB” or “Board”) (which we reported on here and here)—with potentially more to come—the Board, in Sunbelt Rentals, Inc., 372 NLRB No. 24 (2022), affirmed the standards applicable … Continue Reading

NLRB GC Issues Guidance Memo Laying Out Changes to Evidence Collection in Unfair Labor Practice Investigations

By Steven Porzio, Joshua Fox and Dominique Kilmartin on June 19, 2020 Posted in Investigations, Investigations, NLRA, NLRB, Section 7

NLRB General Counsel Peter Robb issued a Memorandum on June 17th setting forth new guidelines for how Regions conduct unfair labor practice investigations—specifically, how Regions secure the testimony of former supervisors and agents, as well as how to handle audio recordings. The stated goal of the Memo is to “promote transparency and apply fairness” during … Continue Reading

Busy Board Returns to Rule Permitting Workplace Confidentiality Restrictions during an Employer’s Investigation

By Mark Theodore, Joshua Fox and Dominique Kilmartin on December 18, 2019 Posted in Confidentiality, Employer policies, Investigations, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Witness statements, Workplace Investigations

As anticipated, in one of the last decisions before the end of Member McFerran’s term, the NLRB issued another important opinion. Reverting back to precedent that preceded a 2015 decision, the Board, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), held that an employer’s confidentiality restrictions for information relating to … Continue Reading

Thorough Employer Investigation Helps Establish Employer’s “Honest Belief” of Employees’ Picket Line Misconduct

By Mark Theodore on May 9, 2018 Posted in Collective Bargaining, General Counsel, Investigations, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Strikes, Uncategorized, Unfair Labor Practices

The Board is now operating at a full complement and is issuing decisions on a fairly regular basis. Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing. A frequent topic of discussion here is the often blurry line between what constitutes “protected” versus … Continue Reading

The Devil Is In the Details: New Board Members Likely To Change Law In Nuanced Ways

By Mark Theodore on October 9, 2017 Posted in Duty to furnish information, Duty to provide information, Employer policies, General Counsel, Investigations, NLRA, NLRB, Protected activity, Section 8(a)(1), Specialty Healthcare, Uncategorized, Unfair Labor Practices, Witness statements

The end of September in most years sees a spate of new NLRB decisions, sometimes dozens, issued on or about September 30, to coincide with the end of the agency’s fiscal year. Not so this past September 30 because of the recent changeover from a majority of Democrat Board Members to a majority of Republican … Continue Reading

Circuit Court Rejects Attack On NLRB’s New Witness Rule

By Mark Theodore on June 7, 2017 Posted in Collective Bargaining, Due Process, Duty to furnish information, Duty to provide information, General Counsel, Investigations, NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices, Witness statements

During the last several years, the NLRB has overturned a great deal of existing precedent. Among other changes, the Board has required bargaining over discipline in newly organized units, found graduate students to be employees entitled to organize, and found that two employers may have to bargain together. The Board also changed the longstanding rule … Continue Reading

Union Represented Employee Not Entitled To Co-Worker Witness During Investigatory Interview, NLRB Rules

By Mark Theodore on May 19, 2015 Posted in General Counsel, Investigations, Mandatory submissions, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

The last few months at the NLRB have been relatively quiet, save of course for the ambush election rules which went into effect on April 15; the true impact of these rules has yet to be revealed. Many of the recent Board cases involve correcting decisions that were invalidated by the Supreme Court in its Noel Canning recess appointment decision. … Continue Reading

Search Of Company Vehicle Not Employee Interview Triggering Weingarten Rights, NLRB Division of Advice

By Mark Theodore on February 27, 2015 Posted in Advice, Investigations, Investigations, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

The scope of a union-represented employee’s right to have a union representative present during an investigatory interview is one of the more interesting areas of labor law. Even though most people who practice labor relations know the basics of the so-called Weingarten rights, the same types of questions continue to arise because there are an … Continue Reading

General Counsel’s Division of Advice Issues Helpful Guidance on Confidentiality Rules in Workplace Investigations

By Ronald Meisburg on April 23, 2013 Posted in Confidentiality, Investigations, NLRA, NLRB, Witness statements

As we reported here, in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the NLRB reviewed an employer’s blanket policy of requiring witnesses to maintain confidentiality during workplace investigations. The Board found that such a policy chilled the right of employees to engage in the protected concerted activity … Continue Reading