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 when an employer interrogates an employee in the course of preparing a defense to an unfair labor practice (“ULP”) charge, which were established in a case decided more than 58 years ago, Johnnie’s Poultry, 146 NLRB 770 (1964).

Johnnie’s Poultry Standard

Over the years, the Board has consistently applied the Johnnie’s Poultry procedures, balancing the “inherent danger of coercion” in employer questioning of employees in preparation for Board proceedings, while also acknowledging that employers have a countervailing “legitimate cause to inquire” to prepare their defense to ULP allegations.

Johnnie’s Poultry established that during such interviews, employers must (1) communicate to the employee the purpose of the questioning; (2) assure the employee that no reprisal will take place; and (3) obtain the employee’s participation on a voluntary basis.  The Board has held that failure to provide these safeguards renders the interrogation per se unlawful.

While courts reviewing NLRB decisions on this issue have generally agreed that whether Johnnie’s Poultry safeguards have been provided in advance of questioning is a relevant consideration in determining whether the employer violated the Act, some courts have disagreed with this bright-line approach and have instead applied a “totality of the circumstances” test, finding that whether such questioning is given is only one of potentially several factors to consider.

NLRB Reaffirms Bright-Line Johnnie’s Poultry Requirements

In Sunbelt, the Board found that while a totality of the circumstances test is used for analyzing most allegations of coercive employer questioning, a different standard must apply where an employer questions employees for the purpose of investigating facts relevant to a ULP complaint because of the unique interests at stake.  On one hand, there is an inherent danger of coercion in such questioning, but on the other, employers have a countervailing legitimate cause to inquire in order to prepare to defend themselves at the ULP hearing.

The Johnnie’s Poultry standard, according to the Board, appropriately balances these interests by permitting the employer to question employees on matters that involve Section 7 activity without incurring liability if the employer observes the particular safeguards that are meant to minimize the coercive impact of the interrogation. The Board also found that the simplicity and predictability of the Johnnie’s Poultry standard encourages employer compliance, and the bright-line nature of the safeguards offer stability and clarity in the law.

The Board rejected the totality of the circumstances test because it risks insufficiently weighting the heightened risk of coercion that is present when an employer questions employees before a hearing, as it would treat that risk “as just one among numerous factors, with no guidance as to how much weight any individual factor carries.”

Additionally, unlike the prophylactic effect of the Johnnie’s Poultry standard, the totality of the circumstances test “would not affirmatively prevent unlawful coercion because it relies on an after-the-fact analysis to determine whether the questioning was coercive.”

The dissenting members (Ring and Kaplan) proposed adopting a rebuttable presumption standard, under which an employer’s failure to provide the Johnnie’s Poultry safeguards would be presumed coercive, but the employer would then be provided an opportunity to rebut that presumption by showing, by a preponderance of the evidence, that the questioning was not coercive under the totality of the circumstances.  The majority rejected this suggestion because such an approach “fails to ensure that employer questioning…is noncoercive, invites employers to provide post hoc rationalizations, and opens the door for employers to probe into employees’ union sympathies.”

Finally, the Board majority rejected the argument, advanced in an Eight Circuit case that overturned a Board decision finding the employer liable for failing to give Johnnie’s Poultry assurances, that the standard infringes on free speech rights under Section 8(c) of the NLRA.  The Board reasoned that the Johnnie’s Poultry standard actually allows the employer to engage in a broader range of questioning than the Board permits in other contexts “because the assurances mitigate employee concerns about potential retaliation.”

Takeaways

The Board reaffirmed what had been a well-settled rule under NLRB precedent, despite many reviewing courts having taken a different approach:  when employers question employees in connection with defending against a ULP proceeding, employers must give Johnnie’s Poultry assurances or risk a per se violation of the Act regarding the questioning.

Importantly, while departing from the bright-line safeguards results in a per se violation, if an employer simply provides these assurances at the outset, it does not wholly insulate an employer from a subsequent ULP charge of coercive questioning.  That will, of course, depend on the actual questions asked.

Finally, always get Johnnie’s Poultry assurances in writing.  In addition, 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.

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board.

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

Steve’s litigation experience includes work on matters before state and federal courts, the Equal Employment Opportunity Commission, the Connecticut Commission on Human Rights and Opportunities, the New York State Division of Human Rights and various other administrative agencies. He has litigated matters involving age, race, national origin, gender and disability discrimination, wage and hour, whistleblower and wrongful termination claims.

While attending the Syracuse University College of Law, Steve served as the editor-in-chief of the Syracuse Science and Technology Law Reporter. He also received the Robert F. Koretz scholarship, awarded in recognition of excellence in the study of labor law.

Photo of Alexander J. Blutman Alexander J. Blutman

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment Law and Co-Producer of the Harvard Law School Parody. While at Harvard, Alex spent time as a legal intern with the UNLV Athletics Department, Special Olympics International, and the National Football League.

Prior to law school, Alex worked as a paralegal at an Am Law 100 law firm. He graduated from Duke University, where he served as a student-manager for the men’s basketball team.