Deposition Questions May Violate the NLRA

An employer’s relevant and legitimate questions during an employee’s deposition in a separate lawsuit may still violate the National Labor Relations Act, according to the National Labor Relations Board.

In Chemtrade West US, the union filed an unfair labor practice charge against the employer based on its questions to an employee during his deposition in a wage and hour case. The employer’s counsel had asked questions regarding the employee’s discussions with the union and other union members about the matters in the lawsuit, for the stated purpose of understanding the employee’s motivation for bringing suit, information about potential witnesses, and why the employee had not invoked the grievance process under the collective bargaining agreement regarding his concerns.

The Act protects workers’ rights to engage in concerted (i.e. group) activity for their mutual aid or protection, and further prohibits employers from interfering in those rights – including the right to keep their protected union activity confidential from the employer. Additionally, the Board has held that employees are engaged in protected concerted activity when filing a group lawsuit against their employer and when discussing such a lawsuit concerning working conditions with their co-workers.

The Board recognizes that not all employer deposition questions are illegal, as employers also have rights in the context of an employee lawsuit, including the right to discover relevant evidence. But there may be times when such questions cross the line, and the Board applies a three-part test, established in Guess?, Inc.: First, the questions must be relevant, as determined by the law of the forum in which the civil suit is pending. Second, if the questioning is relevant, it must not have an illegal objective. Third, if the questioning is relevant and does not have an illegal objective, the employer’s interest in obtaining the information must outweigh the employees’ confidentiality interests under the Act.

In this case, the Board found that the employer’s questions were relevant. However, the Board found that the employee’s confidentiality interests outweighed the employer’s interests. To some extent, the information sought could have been obtained through other means – like questioning the other employees directly or requesting a witness list. And questions about the employee’s prior grievances were not specifically tailored to support the employer’s defense. Moreover, such questioning could “chill” employees’ desires to speak with their union representatives, if they knew that they may have to disclose their confidential discussions in a public forum.

Now frankly, deposition questions are not typically developed by the employers themselves, but rather by their defense counsel. Thus, when dealing with an employee lawsuit about group interests such as wages or hostile work environment harassment, it is important for unionized employers to ensure that they retain experienced counsel who are aware of the potential pitfalls under the Act when deposing employees who are members of a union.