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NLRB Finds Employer's Deposition Questions About Employees' Union Activity Unlawful

Volume 11, Issue 5
June 12, 2012

In Century Restaurant & Buffet, Inc. , 358 N.L.R.B. No. 23 (Mar. 27, 2012) (Century Buffet), the National Labor Relations Board (NLRB) found that deposition questions asked by an employer's attorney in a civil wage and hour case concerning employees' union activities violated Section 8(a)(1) of the National Labor Relations Act (NLRA).  Employees of the Century Buffet had contacted a union to assist them with their concerns over various job conditions, including how they were being compensated.  The union put the employees in touch with an attorney who agreed to help the employees with certain minimum wage, overtime and tip income issues and who subsequently filed a federal lawsuit asserting a number of claims, including violations of the Fair Labor Standards Act (FLSA) on the employees' behalf.  While the wage and hour lawsuit was pending, the union sought and obtained the employer's recognition as the employees' exclusive bargaining representative.  During employee depositions taken in the wage and hour case, the employer's attorney asked the employees whether they were union members, when they became union members, whether they continued to be union members, whether named employees were union members, whether they spoke to any union members about the lawsuit, whether they had any agreements with the union concerning their work for the employer relating to the lawsuit, and whether they attended protests on a weekly basis without any objections raised by their attorney.  The questions alleged to be unlawful were those asking about the employees' union activities and the union activities of other employees. The employer maintained that the deposition questions were relevant to determining whether the employees entered into any illegal financial agreements in bringing the lawsuit.  In analyzing whether such questioning was permissible, the NLRB applied a three part test it developed in Guess?, Inc., 339 N.L.R.B. 432 (2003), which is designed to determine: (1) whether or not the questioning is relevant to the lawsuit; (2) if the questioning is relevant, whether or not it has an illegal purpose; and (3) if the questioning is relevant and has a legal purpose, whether or not the employer's interest in obtaining the information outweighs the employees' confidentiality interests under Section 7 of the NLRA.  The NLRB ultimately concluded that deposition questions regarding whether or not the Century Buffet employees were union members or attended protests were not relevant to the wage and hour case.  The NLRB further found that even if the questions were relevant and not asked for an illegal purpose, the employer's interest in obtaining the information did not outweigh the employees' confidentiality interests.  The NLRB has long protected employees from having to submit to compulsory interviews that include questions about their union and other group activities protected under Section 7 of the NLRA by employer representatives preparing for an unfair labor practice or other proceedings before the NLRB or for labor arbitrations.  Indeed, since 1964, based on a case called Johnnie's Poultry Co., 146 N.L.R.B. 770 (1964), any such employee interviews can only occur on a voluntary basis after an employer representative provides the employee with certain safeguards. Specifically, before asking an employee about activities protected by Section 7 of the NLRA to aid in the employer's preparations for an NLRB proceeding or labor arbitration, the employer's representative must: (1) communicate to the employee the purpose of the questioning; (2) assure the employee that no reprisal will take place as a result of the questioning; and (3) obtain the employee's participation in the questioning on a voluntary basis.  Absent providing such a " Johnnie's Poultry warning" (often analogized to a police officer's obligation to provide Miranda rights to a criminal suspect under arrest before attempting to question him), an employer's interview of an employee about his or her union and other group activities protected under Section 7 of the NLRA constitutes unlawful interrogation.  As the civil litigation process already provides some protections from abusive or overreaching questioning, the slightly less restrictive test set forth in Guess?, Inc. is utilized by the NLRB.  However, as reflected in the Century Restaurant & Buffet decision, employers must be careful not to overstep their bounds when questioning employees about union and other group activities protected under the NLRA, even when deposing employees in a federal or state lawsuit as the rules of civil case procedure will not shield employers from being held liable by the NLRB for violations of the NLRA they commit in the course of such litigation.

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