Employers investigating unfair labor practice claims can breathe a little easier, as the National Labor Relations Board (NLRB or the Board) upheld the longstanding Johnnie’s Poultry standard for conducting interviews with employees about ongoing complaints. In Sunbelt Rentals, Inc., the Board reaffirmed the continuing validity of the bright-line, per se standard promulgated in Johnnie’s Poultry Co., used to evaluate the legality of employer interrogations. In upholding and applying this standard, the Board ultimately concluded that Sunbelt Rentals violated Section 8(a)(1) when it interrogated two employees without providing required assurances.

The Board has applied the standard articulated in Johnnie’s Poultry for over 58 years. This standard permits an employer to question employees on matters involving Section 7 activity in limited circumstances without incurring liability if the employer observes specific safeguards designed to minimize the coercive impact of such interrogation. If an employer fails to strictly observe these safeguards, this will result in a finding that the interrogation was per se unlawful. This standard is important because it largely dispels the dangers of coercion inherent in employer questioning in this context, accommodates an employer’s need to question employees as it prepares a defense to unfair labor practice allegations, and ensures that employees may speak truthfully without fear of reprisal, thereby protecting the integrity of Board processes.

Under the Johnnie’s Poultry standard, as reaffirmed in Sunbelt Rentals, employers must continue to abide by the following specific safeguards when interviewing employees in preparation for unfair labor practice proceedings before the Board: (1) communicate to the employee the purpose of the questioning; (2) assure the employee that no reprisal will take place; (3) obtain the employee’s participation on a voluntary basis; (4) conduct the questioning in a context free from employer hostility to union organization and not in a manner that is itself coercive in nature; and (5) not ask questions that 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.

Had the Board instead decided to reject the Johnnie’s Poultry standard, in whole or in part, it may have severely limited employers’ abilities to protect their legal interests by speaking to their own employees during investigations. There was fear that the Board may have applied one of many less-flexible options, such as a multi-factor totality of the circumstances standard, rebuttable presumption standard, a bar on employer investigations involving their own employees, or requirements that some third party such as an NLRB union representative be present for any such investigations. But in reaffirming the Johnnie’s Poultry standard, the Board held that the standard is rational, consistent with the National Labor Relations Act (NLRA), appropriately balances employer and employee interests, and best promotes the Board’s interest in enforcing the NLRA.

Takeaway

Conducting an investigative interview during an unfair labor practice investigation remains fraught, as employees and unions often portray these exercises as inherently coercive, regardless of whether the employer complies with Johnnie’s Poultry. As a result, employers should reach out to labor counsel for strategic guidance before striking out on their own.