Earlier this spring, in a 3-1 vote, the Board issued a notice and solicited briefs on whether to reconsider Johnnie’s Poultry doctrine (doctrine), which was established in the 1964 Board decision, Johnnie’s Poultry Co. The doctrine balances the legitimate need of the employer to question employees as part of its investigation of facts and preparation of its defense for the litigation of unfair labor charges in administrative hearings against the employees’ right to engage in protected activity or otherwise exercise their statutory rights under section 7 of the National Labor Relations Act (Act). To minimize the risk of coercive behavior levied against employees during the interviews, the doctrine establishes safeguards that limit the scope and manner of employers’ interviews with employees. Chair McFerran, the sole Democrat on the Board, opposes reconsideration of the doctrine and dissented from the notice.
The Board’s decision to reconsider the doctrine arose during its decision in Sunbelt Rentals, Inc. and International Union of Operating Engineers, in which a bi-partisan Board upheld the administrative law judge’s decision that the employer committed several violations of the Act. Severed from its decision and retained for further consideration, however, was the issue of whether the employer violated the Act when it coercively interrogated two employees in connection with their testimony at the unfair labor practice hearing. Under the doctrine, employers are required to provide the following assurances and information to its employees:
- Prior to the interview, the employer must communicate the purpose of the interviews, assure the employee that no reprisal will occur as a result of their participation or their substantive responses to questions, and inform the employee that the participation is voluntary so that the employee can decline to participate in the interview;
- Conduct the interview without hostility toward the union and not be “coercive in nature;” and
- Conduct the interviews in a manner that does not exceed the necessities of the legitimate purpose by prying into other union matters, by eliciting information concerning an employee’s subjective state of mind, or by otherwise interfering with the statutory rights of employees.
A failure to comply with any one of the doctrine’s requirements violates the Act.
In the event it overrules the doctrine, the Board also seeks public input relating to the nature of the factors that should be applied to protect employee rights during employer interrogations; whether the Board should adopt a “totality of the circumstances standard”; and what, if any, of the safeguards from Johnnie’s Poultry should be retained to determine whether the employer’s interrogation violates the Act.
In her dissent, Chair McFerran argued that the current safeguards are necessary to protect vulnerable employees from coercive behavior, the “voluntary nature of an employee’s cooperation,” and employees’ ability to freely exercise their statutory rights. Chair McFerran however, did not rule out a possible “refinement” of the current doctrine and pledged to consider all responses “with an open mind.” The deadline for filing briefs under the notice was April 5. Any significant change to the doctrine by the current Board, however, is likely to be short-lived. Upon Senate confirmation of Board nominee, Gwynne Wilcox, and the opportunity to appoint a second Board member upon the expiration of Bill Emanual’s term on August 27, 2021, the Democrats will regain a majority on the Board and be in a position to revert the doctrine back to its original form.
Tracey Oakes O’Brien, Legal Content and Knowledge Manager, is a co-author of this content.