NLRB Invites Briefs Regarding Employer Investigations

Washington, DC – In an order issued today, the National Labor Relations Board invited parties and amici to submit briefs in Sunbelt Rentals, Inc., 370 NLRB No. 94 (2021).  A majority of the Board asked for briefing on the following questions:

1.  Should the Board adhere to or overrule Johnnie’s Poultry?

2.   If the Board overrules Johnnie’s Poultry, what standard should the Board adopt in its stead?  What factors should it apply in determining whether an employer has violated the Act when questioning an employee in the course of preparing a defense to an unfair labor practice allegation?  Should the Board apply a “totality of the circumstances” standard?  Even if some of the Johnnie’s Poultry safeguards should be dispensed with, are there any that, if breached, should continue to render such questioning unlawful per se?      

Members Kaplan, Emanuel, and Ring joined in issuing the notice and invitation; Chairman McFerran dissented.

Briefs not exceeding 25 pages in length shall be filed with the Board in Washington, D.C., on or before April 5, 2021.  The parties may file responsive briefs on or before April 20, 2021, which shall not exceed 15 pages in length.  No other responsive briefs will be accepted.  The parties and amici shall file briefs electronically by going to www.nlrb.gov and clicking on “eFiling.”  If assistance is needed in E-filing on the Agency’s website, please contact the Office of Executive Secretary at 202-273-1940.

Click here to read the notice and invitation to file briefs.

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions.  The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.