City of Commerce (2018) PERB Decision No. 2602-M (Issued on 12/11/18)
As part of a disciplinary arbitration, the attorney for the employer in this case interviewed two employees who were subpoenaed by the union. The union’s representative objected. However, the city’s attorney proceeded with the interviews and allowed both employees to bring a union representative. According to the decision, during the interviews the city’s attorney did not inform the employees that the interviews were voluntary and that if they chose to participate, the city would not impose any consequences based on their answers or on their refusal to answer any of the questions. The city’s attorney also asked one employee if he knew why the union was calling him as a witness.
The primary issue was whether the city’s attorney should have given the employees Johnnie’s Poultry warnings. In Johnnie’s Poultry, the NLRB recognized that an employer may have a legitimate interest in questioning employees but to mitigate the danger of coercion the NLRB held that an employer must: 1) communicate to the employee the purpose of the questioning, 2) assure him that no reprisal will take place, and 3) obtain his participation on a voluntary basis. The questions asked must not be itself coercive in nature and cannot exceed the necessities of the legitimate purpose by prying into other union matters. (Johnnie’s Poultry Company (1964) 146 NLRB 770, enf. den. (8th Cir. 1965) 344 F.2d 617.
The city challenged the ALJ’s proposed decision finding that PERB adopted Johnnie’s Poultry in State of California (Department of Corrections) (1995) PERB Decision No. 1104-S. The Board rejected the city’s argument and affirmed. In doing so the Board rejected the city’s invitation to adopt Cook Paint & Varnish Company v. NLRB (D.C. Cir. 1981) 648 F.2d 712, in which, according to the Board, the court held that an employer is generally permitted to interview a union’s arbitration witnesses under threat of discipline.
The Board also adopted the ALJ’s finding that the employer unlawfully asked one of the employees if he knew why he was being called as a witness. The Board held that, “asking a union’s arbitration witnesses if they know why they are being called necessarily inquires into the union’s strategy.”
The Board’s majority decision drew a concurrence from Member Shiners. Member Shiners argued that the NLRB has only applied Johnnie’s Poultry where an employer interrogates employees about Section 7 protected activity. According to Member Shiners, Johnnie’s Poultry safeguards are not required when an employer’s questions are unrelated to Section 7 protected activity. In those situations, Member Shiners argued that the “totality of circumstances” test approved in Cook Paint should be applied. According to Member Shiners:
[T]he majority’s per se rule creates liability where the employer’s questioning was not in fact coercive. Because the proper balance of employer and employee interests may vary by case, I would follow the majority of jurisdictions and apply a totality of circumstances test that examines whether the employer’s questioning was coercive in the particular factual context in which it took place, with the provision or absence of Johnnie’s Poultry assurances as one factor to be considered.
- I agree with Member Shiners that the Board’s decision here goes beyond what is required by the NLRB. Namely, that Johnnie’s Poultry advisements are not required in every hearing involving a represented employee. But I also agree the majority, and with Member Shiners, that an employer should not use an employee interview to pry into the union’s hearing strategy.
- However, I disagree with the notion that asking an employee about his intended testimony at a hearing necessarily delves into union strategy. I can imagine many scenarios where asking an employee about his intended testimony is the same as “gathering facts.” For example, assume the witness employee saw an altercation between two employees. Asking the witness, “what did you see” and “what are you going to testify that you saw” are essentially the same thing, or at least they should be. And if they are not, that’s exactly the type of information the employer should be able to gather. Neither, in my opinion, gets into union strategy.
- However, I do concede that there could be situations where asking a witness what he is going to testify about could reveal some union strategy. For example, the witness might respond that, “the union asked me to testify about my own experience of disparate treatment by the same supervisor…” and thus reveal one of the union’s defenses at the hearing. But such a “revelation” is a natural consequence of the interview and in my opinion doesn’t run afoul of Johnnie’s Poultry. Nevertheless, the Board here disapproved of this type of question.
- This is not a minor quibble since the prohibition on prying into union strategy cannot be protected against by simply giving Johnnie’s Poultry advisements. Under this decision, giving the Johnnie’s Poultry advisements will not protect an employer from an interference charge if the questions nevertheless delve into a union’s strategy. So the lessen here is to be very careful, and very precise, in questions to represented employees who are witnesses.
- Therefore when interviewing represented employees, I would recommend using a California-version of Johnnie’s Poultry. The advisement should: 1) communicate to the employee the purpose of the questioning, 2) assure the employee that the interview will only involve questions relevant to the issues in the hearing, 3) assure the employee that the questions will not delve into union strategy and specifically request the employee not to reveal information regarding the union’s strategy, 4) assure the employee that no reprisal will take place for participating in the interview, and 5) obtain the employee’s agreement to participate in the interview on a voluntary basis. In certain situations it may be wise to document the employee’s consent by utilizing a form where these advisements are set forth in writing.