2nd Circuit Provides Guidance on Questioning of Employees During Work Stoppage


The U.S. Court of Appeals for the Second Circuit provided guidance to employers on the parameters of lawful questioning of employees during a work stoppage.

In Time Warner Cable of New York City LLC v. NLRB, approximately 50 employees engaged in a work stoppage and demonstration, which resulted in delayed and missed service appointments that day. The Employer used video surveillance to identify the employees involved in the demonstration. The employees were then summoned for investigatory interviews, where the employer inquired as to who told the employees about the gathering, when the employees received notification of the gathering, and how the gathering was communicated to the employees. The employees involved in the demonstration were suspended, and their Union filed an unfair labor practice charge, alleging that their National Labor Relations Act rights had been violated. The National Labor Relations Board agreed, and the case was appealed to the Second Circuit.

The Second Circuit concluded that the Board’s standard requiring that employers “focus closely” on unprotected activity where it might touch on protected activity has a reasonable basis in law; but the Board’s requirement that an employer “minimize” intrusion into Section 7 activity in such questioning does not.

Where the unprotected activity that was the legitimate focus of the employer’s inquiries was potentially intertwined with protected activity, such that any inquiry into the planning or motivation of the unprotected activity risked eliciting answers that would implicate the exercise of protected rights, the Board has previously allowed questioning that could elicit considerably more than minimal information protected activity. The Second Circuit found that by prohibiting inquiry into any conduct preceding the unprotected conduct except to identify “actual participants” in the demonstration, the Board disallowed highly relevant inquiry into identification of those deserving of discipline and into making appropriate distinctions among them. Because it found the Board’s enunciated standard, as applied to the facts of this case, lacked a reasonable basis in law, the Second Circuit remanded the matter to the Board for further proceedings consistent with its opinion.

Takeaway: Where employees engage in unprotected conduct, employers may lawfully question employees regarding the participants in the unprotected conduct. In addition, employers may also inquire as to the planning of the unprotected activity even if those questions may elicit answers that bear on the exercise of Section 7 rights. The questioning may also touch upon the planning of the unprotected conducted, as well.