NLRB Protects Workers from Employer Coercion During Investigation of Unfair Labor Practice Complaints

Today, the National Labor Relations Board issued a decision in Sunbelt Rentals, Inc., reaffirming its longstanding approach to protecting employees from coercion when they are interviewed by employers preparing for unfair labor practice proceedings before the Board.  This decision follows the Board’s Notice and Invitation to File Briefs seeking public input regarding whether or not to adhere to the standard first adopted in 1964 in Johnnie’s Poultry, 146 NLRB 770 (1964), which found that such interviews violated the National Labor Relations Act unless the employer gave the employee specific assurances.   

After considering public comment, a Board majority consisting of Chairman McFerran and Members Wilcox and Prouty found that the Johnnie’s Poultry standard effectively balances employers’ legitimate need to prepare a defense to an unfair labor practice allegation with employees’ statutory right to engage in protected concerted activity free from employer interference, and decided to adhere to the Johnnie’s Poultry standard in whole. The standard states:

“The employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be 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.”  

“Today’s decision maintains a well-understood 58-year standard that has proven successful in balancing employer needs and employee rights, while protecting the integrity of the Board’s process,” said Chairman Lauren McFerran. “Because of the strong possibility of coercion in an employer interview about unfair labor practice issues, employees need protection.  This familiar, bright-line test is easy for employers to comply with and brings certainty to the administration of the Act.”

Members Kaplan and Ring dissented.