Monday, March 1, 2021: NLRB Invites Briefs Regarding Employer Investigations
The National Labor Relations Board (NLRB) invited the parties and amici curiae (“friends of the court”) to submit briefs in Sunbelt Rentals, Inc., 370 NLRB No. 94 (2021).
Background: Johnnie’s Poultry Co, 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965), is a 1965 NLRB case decision which set down procedural safeguards employers must follow when interviewing employees to prepare the company’s defense to an unfair labor practice (ULP) charge. In the current Sunbelt Rentals case, an NLRB Administrative Law Judge ruled that Sunbelt had violated Section 8(a)(1) of the National Relations Act when its attorney interviewed two employees in the course of preparing its defense to an ULP charge without fully complying with the safeguards Johnnie’s Poultry had set out.
Last Monday, a majority of the Board (Members Kaplan (R), Emanuel (R), and Ring (R) voted to seek briefs (and the lone Democrat on the NLRB, Chairman McFerran, dissented) 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 instead?
- 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?”
File electronically by selecting “eFiling.” Contact the Office of Executive Secretary at 202-273-1940 for assistance.
- File briefs (25 pages or less) 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 (15 pages or less).
No other responsive briefs will be accepted.