Company's Deposition Question Violates NLRA

The NLRB recently issued a decision that applied its Guess, Inc. rule, which deals with an employer's questions to an employee during a deposition.  In Chinese Daily News, several employees who were open supporters of a CWA organizing drive filed a wage and hour class action against their employer.  The employer challenged the employees' fitness as class representatives, arguing that the suit was motivated to advance the union organizing.  Following class certification, the employer deposed the employees and asked several questions related to their union activities, including whether they voted for the union in a recent election.  Reversing an ALJ decision, the Board found that the voting question was unlawful under its Guess, Inc. rule:

Under that test, [we consider] whether the questioning is relevant to the lawsuit, and, if so, whether it
has an illegal objective. If the questioning is found to be relevant and without an illegal objective, the Board must then consider whether the Respondent’s need for the information outweighs employees’ Section 7 rights. . . .

We begin by assuming arguendo that the Respondent’s questioning of Wei whether he voted for the Union was relevant to the litigation . . . . We also find, consistent with the judge’s decision below, that the Respondent’s questioning did not have an illegal objective.

[However, we] find, contrary to the judge, that Wei’s interest in maintaining the confidentiality of his vote in the election was substantial. The Board has recognized that “the secrecy of balloting . . . is a hallmark of our election procedures.” The Board has also consistently recognized that an employer’s interrogation of an employee concerning how that employee intends to vote, or has voted, in a secret-ballot election violates the Act, notwithstanding the employee’s open advocacy for the Union. Thus, even though Wei was an open union supporter, he retained a substantial Section 7 interest in preserving the confidentiality of his vote.

We next find that the Respondent has not shown that its need for the information concerning Wei’s vote justified the infringement on his Section . . . . Although we assume arguendo that Wei’s support for the Union may have been broadly relevant to the Respondent’s defenses, it is nevertheless clear that the Respondent has not demonstrated that its ability to establish how Wei voted in the election substantially furthers either of those two defenses. The Respondent does not dispute the fact that it had otherwise established that Wei, Sun, and Wang were open and active union supporters. With that established, it is difficult to see—nor does the Respondent explain—how asking Wei about his confidential vote would appreciably further the Respondent’s effort to disqualify Wei. Thus, we find Wei’s substantial interest
in maintaining the confidentiality of his vote outweighs the Respondent’s need for that information.

A good reminder that the NLRA can be implicated in disputes that are primarily about a different area.  The case also adds to the chorus of statements extolling the importance of secret ballots that we'll be hearing when the EFCA issue officially hits the fan.

Hat Tip:  Dennis Walsh

-JH