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Guess? What? Deposition question created an unfair labor practice
January 08, 2009 by Ross Runkel at LawMemo
Monday's NLRB Law Memo contains a reminder: An employer can commit an unfair labor practice during a deposition by asking an employee whether he voted for a union. Yes, even though the question may have been relevant, and even though the employer had no illegal motive in asking the question.
Chinese Daily News, 353 NLRB No. 66 (Dec. 22, 2008).
The NLRB held that the employer violated Section 8(a)(1) of the National Labor Relations Act when its attorney asked an employee union supporter during a deposition - which was taken in connection with the employer's defense of a class-action wage-and-hour lawsuit brought by some of its employees - whether the employee, who was a supportive declarent in the motion for class certification, had "vote[d] for the Union to win the election[.]"
The Board applied the test set forth in Guess?, Inc., 339 NLRB 432 (2003)
The Board made two assumptions, for the purpose of argument:
that the deposition question at issue was relevant to the litigation.
that the questioning did not have an illegal objective.
However, the Board found that the employee's substantial Section 7 interest in maintaining the confidentiality of his election vote outweighed the employer's need for the information concerning his vote for the purpose of developing its defense to the lawsuit, i.e., that the class should not be certified because the plaintiffs would not act in the best interests of the class, and that one of the plaintiffs and the supportive declarents, including the employee, were biased against the employer because they were Union supporters.
The Board therefore concluded that the deposition question regarding how the employee voted in the election constituted an unlawful interrogation.
My view: Nice reminder that employer lawyers dealing with issues that may have nothing at all to do with interacting with a union need to keep the National Labor Relations Act in the backs of their minds.
More on this case from Workplace Prof Blog: Company's Deposition Question Violates NLRA.
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