We speak the language of our professions. I have to remind my accountant that I don’t speak accountant-ese. A construction client of mine is endlessly amused that I don’t know how to use a jigsaw. And my father-in-law catches himself remembering that I don’t know the difference between a spark plug and a piston.
Likewise, I’ve been doing traditional labor law for so long that I assume other people know the nuances of labor law. People who don’t know better assume that labor and employment attorneys all know traditional labor law: they don’t. Traditional labor law – the law dealing with labor unions and the National Labor Relations Board – is a highly focused specialty. If you don’t believe me, just ask Lawyer #3.
Lawyer #3 is an unnamed lawyer who interviewed an employee without giving that employee proper Johnnie’s Poulty assurances. Labor lawyers and a few others know about Johnnie’s Poultry assurances.
A long time ago a case called Johnnie’s Poulty created the law that representatives of companies, i.e. their labor lawyers, are allowed to interview employees represented by unions only after providing those employees with certain assurances.
Specifically, Johnnie’s Poultry allows questioning of employees only after the employer’s representatives:
- communicate to the employee the purpose of the questioning;
- assure the employee that no reprisals will take place for refusing to answer any question or for the substance of any answer given; and
- obtain the employee’s participation in the interview on a voluntary basis.
Each step is critically important, something Lawyer #3 working as outside counsel for Albertson’s grocery store did not realize.
The union seeking to represent workers at an Albertson’s grocery store filed an unfair labor practice charge alleging that management made unlawful statements while delivering a PowerPoint presentation to employees. Employee Martinez was interviewed twice about the statements by two different attorneys representing Albertson’s. Both those attorneys gave Martinez appropriate Johnnie’s Poultry assurances before starting the interview.
However, Lawyer #3, the third lawyer to interview Martinez admittedly did not know about Johnnie’s Poultry and interviewed Martinez without giving him the proper assurances. Despite having been assured twice before, the NLRB found that the long interval between interviews, the presence of a new attorney interviewer, and a change in the location of the interview and scope of questioning necessitated that Lawyer #3 give Martinez Johnnie’s Poultry assurances before the interview commenced.
The ramifications of not giving proper Johnnie’s Poultry assurances can be astronomical. For example, attorneys who fail to give assurances before withdrawing recognition of the union can find the withdrawal unlawful and the union back inside the company. At a minimum, make sure your labor lawyer knows how to properly use Johnnie’s Poultry assurances. If he or she doesn’t, you need a new labor lawyer.
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.