Q. Our employee relations manager received a charge of an unfair labor practice (ULP) filed by the union with the National Labor Relations Board. In the ULP charge, the union alleges that when the secretary for our attorneys contacted a former employee—who had been discharged for misconduct—to schedule his deposition in his unemployment compensation proceeding, our company engaged in coercive interrogation in violation of the National Labor Relations Act and the Johnnie’s Poultry standard. There were no unfair labor practice proceedings pending before we received this ULP charge.
What is Johnnie’s Poultry, and how is scheduling a deposition in a proceeding about a former employee’s unemployment compensation claim an unlawful labor practice?
A. Johnnie’s Poultry is a 1965 case in which the National Labor Relations Board (NLRB) set out a number of safeguards to minimize any coercive impact to employees when employers or their attorneys exercise their limited privilege to interrogate employees about their activities protected by the National Labor Relations Act (NLRA). Thise rights include the right “to form, join, or assist” unions or to engage in collective bargaining related concerted activities.
The safeguards and the limited privilege arise for: (1) inquiries to verify a union’s claim of a majority status to be the employees’ certified representative, or (2) interrogations to investigate facts concerning the issues raised in an ULP complaint, where the questioning is necessary in preparing an employer’s defense for the trial in the case.
A few federal courts have held that an employer’s failure to meet all of the Johnnie’s Poultry safeguards means that the interrogation was per se coercive and an unfair labor practice. However, current federal rulings applicable to Florida instead use a totality of the circumstances analysis that considers what are commonly called the Bourne criteria, which would not necessitate a finding of unlawful coercion if all are not present:
- History of the company’s attitude toward its employees
- Type of information sought
- Interrogator’s rank in the company hierarchy
- Place and manner of the interrogation
- Truthfulness of the employee’s response
- Whether the company had a valid purpose in obtaining information concerning the union’s strength or about issues raised in a pending ULP charge proceeding
- Whether the company communicated this purpose to the employees
- Whether the company assured the employees that no reprisals would be taken
Based on the circumstances you have described, it is unlikely that your company has engaged in an ULP under the NLRA.
First, no interrogation about activities protected by the NLRA has occurred. Your attorney’s secretary merely asked when the employee would be available to be deposed or interrogated in the future.
Additionally, unemployment compensation proceedings customarily do not involve issues related to NLRA-protected activities. A deposition in defense of a claim for those benefits is a valid purpose for seeking information about the former employee’s performance and behavior that resulted in the discharge. Courts have generally held that trial-preparation inquiries concerning only work performance (and not protected activities) do not trigger Johnnie’s Poultry or even Bourne safeguards.
Your employment attorney will be able to determine whether any inquiries about potential NLRA-related activities may arise during the deposition and whether the safeguards might be needed.
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