The National Labor Relations Board (NLRB) has raised the possibility that it might make changes in its Johnnie’s Poultry standards, which establish safeguards to reduce the possibility an employer, while questioning an employee in preparation for a trial or hearing, might interfere with, restrain, or coerce employees in the exercise of their Section 7 rights, and thereby violate of the National Labor Relations Act (NLRA). Kauai Veterans Express Co., 369 NLRB No. 59 (Apr. 16, 2020).

The NLRB did not change the standard in Kauai Veterans Express Co. because neither party to the case asked it to do so.

In Johnnie’s Poultry, 146 NLRB 770 (1964), the NLRB held that, before asking the employee any questions, the employer must (1) inform the employee of the purpose of the questioning; (2) assure the employee that no reprisals will take place for refusing to answer any question or for the substance of any answer given; and (3) obtain the employee’s participation in the interview on a voluntary basis. Even if an employer takes these steps, the employer still may violate the NLRA if the “questioning … [does not] occur in a context free from employer hostility to union organization and … [is] not by itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee’s subjective state of mind, or otherwise interfering with the statutory rights of employees.”

In Kauai Veterans Express Co., the NLRB held that the employer had unlawfully polled employees about their union sympathies in violation of the NLRA when its attorney prepared declarations for them to sign (stating they did not support the union), because the employer did not show it complied with the safeguards in Johnnie’s Poultry.

The NLRB noted that the Second, Fifth, Seventh, and Eighth Circuit Courts of Appeals have disagreed with the Johnnie’s Poultry standards, which suggests that the NLRB’s possible change(s) would mean only that the failure to provide the employee safeguards will not per se violate the NLRA, as was the situation in those cases. However, where questioning an employee implicates protected concerted activity, it may be difficult to establish the investigation was not a coercive interrogation without written evidence the employee was given assurances. Under those circumstances, use of the Johnnie’s Poultry safeguards should continue in order to avoid (or defend against) unfair labor practice charges alleging unlawful employee questioning.

Please contact a Jackson Lewis attorney with questions about this or other NLRB or NLRA issues.

 

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Thomas V. Walsh Thomas V. Walsh

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments…

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments in the Weingarten Doctrine, The Board Shifts to the Right,” for the St. John’s University Journal of Legal Commentary. He is also co-author of the Atlantic Legal Foundation’s series “Leveling the Playing Field – What Charter School Leaders Need to Know About Union Organizing.” Mr. Walsh is a member of the New York State Bar Association and of the American Bar Association, and participates in the labor and employment law sections of both organizations.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993