NLRB Disregarded Its Own Precedent, Erred by Expanding Prohibitions on Coercive Interrogations About Unprotected Conduct: Second Circuit | Practical Law

NLRB Disregarded Its Own Precedent, Erred by Expanding Prohibitions on Coercive Interrogations About Unprotected Conduct: Second Circuit | Practical Law

In Time Warner Cable of New York City LLC v. NLRB, the Second Circuit partially rejected the two-prong standard for assessing the lawful scope of questioning available to an employer conducting an investigation in response to employees' unprotected activity where that interrogation also may touch on activity protected under the National Labor Relations Act (NLRA).

NLRB Disregarded Its Own Precedent, Erred by Expanding Prohibitions on Coercive Interrogations About Unprotected Conduct: Second Circuit

by Practical Law Labor & Employment
Law stated as of 15 Jul 2022 • USA (National/Federal)
In Time Warner Cable of New York City LLC v. NLRB, the Second Circuit partially rejected the two-prong standard for assessing the lawful scope of questioning available to an employer conducting an investigation in response to employees' unprotected activity where that interrogation also may touch on activity protected under the National Labor Relations Act (NLRA).
On December 10, 2020, in Time Warner Cable of New York City LLC v. NLRB, the Second Circuit considered the two-prong standard enunciated by the NLRB for assessing the lawful scope of questioning available to an employer conducting an investigation in response to employees' unprotected activity where that interrogation also may touch on activity protected under the NLRA ( (2d Cir. Dec. 10, 2020), vacating 366 N.L.R.B. No 116 (June 22, 2018)).
The Second Circuit:
  • Upheld the standard's first prong requiring an employer conducting an investigation into unprotected activity to "focus closely on the unprotected misconduct," concluding that this requirement has a reasonable basis in law and is well-grounded in NLRB precedent (see Fresh & Easy Neighborhood Market, Inc., 361 N.L.R.B. 151 (2014); HCA Health Servs. of N.H., Inc., 316 N.L.R.B. 919 (1995); St. Louis Comprehensive Neighborhood Health Ctr., Inc., 248 N.L.R.B. 1078 (1980)).
  • Rejected the standard's second prong requiring an employer to "minimize intrusion into Section 7 activity," at least as narrowly interpreted by the NLRB to prohibit "virtually all intrusion" and allow questioning to touch on protected activity no more than the smallest possible amount, holding that this extremely restrictive interpretation of "minimize" departs from NLRB precedent recognizing that an interrogation that touches on protected activity may be permissible where the unprotected conduct is intertwined with the exercise of protected rights. The NLRB previously required that coercive questioning be "directed at" unprotected activity, but permitted some intrusion into the peripheral protected union activities (St. Louis Comprehensive Neighborhood Health Ctr., Inc., 248 N.L.R.B. at 1087).
  • Vacated the NLRB's conclusion in this case that the employer's line of questioning violated Section 8(a)(1) of the NLRA because it was based on the NLRB's application of this improper standard, and directed the NLRB on remand to re-evaluate the lawfulness of the employer's questioning employing a standard consistent with its precedent.

UPDATE:

On July 15, 2022, the Board approved the non-Board settlement of the underlying unfair labor practice complaint and vacated the Board's 2018 decision. The Board majority (Members Wilcox and Prouty) declined to vacate the decision for all purposes, including as precedent, over Member Ring's dissent. (371 N.L.R.B. No. 116 (July 15, 2022).)