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Employers Must Notify Employees of their Right to Decline Before Conducting Interviews in Preparation for PERB or Arbitration Hearings

March 28, 2019 by

The NLRB has long had a rule that requires employers, prior to interviewing union members about an upcoming NLRB trial, to assure employees that their participation is voluntary and that no reprisals will be taken based on the employee’s answers or refusals to answer questions.  The requirement that these advisories be given is referred to as the Johnnie’s Poultry rule, based on the lead case. PERB has now issued a decision affirming adoption of Johnnie’s Poultry in the public sector, and extending that rule to apply to arbitration proceedings.  

The case involved a city attorney who interviewed two employees the local union had subpoenaed to testify in an arbitration hearing.  Prior to the questioning, the city attorney did not assure the employees that (1) the interviews were voluntary or (2) that if they chose to participate the city would not impose any consequences based on their answers to—or refusal to answer—any questions.  PERB concluded that the city’s failure to give the employees the Johnnie’s Poultry assurances violated the Meyers-Milias-Brown Act (MMBA).

In its appeal to PERB, the City argued that it was not required to offer the assurances because PERB had previously rejected application of Johnnie’s Poultry in the public sector and because the NLRB has not clearly applied Johnnie’s Poultry to the pre-arbitration setting.  PERB rejected both arguments.

First, the Board clarified that in fact it had—in a previous decision—adopted the Johnnie’s Poultry rule. Second the Board distinguished cases in the private sector suggesting Johnnie’s Poultry does not apply to arbitration hearings. The Board observed that unlike the National Labor Relations Act, the MMBA grants important organizational rights that promote the improvement of employer-employee relations alongside the full communication between public employers and their employees.  In concluding that Johnnie’s Poultry does apply to employer questioning of employees in preparation for arbitration, the Board pointed out the inherent danger of coercion in a pre-arbitration interview. 

The opinion in Commerce City Employees Association v. City of Commerce.  (12/11/18) can be downloaded below:

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