04/17/2024: More Illegal Deposition Requests
04/17/2024: More Illegal Deposition Requests
Be careful what you ask in employment-related lawsuits.
1. Chemtrade West US LLC, 373 NLRB No. 43, 32-CA-282594 (Published Board Decision)
The Board affirmed the decision of the administrative law judge (ALJ) in this case. The case pertains to a worker, Rolando Lugo, that filed a wage-and-hour lawsuit against their employer and was then asked the following questions by the employer during a deposition in that case:
How Lugo obtained his counsel for the lawsuit and what the union said to him about opting out of a prior settlement.
Lugo's conversations with his coworkers about their concerns with the prior settlement and the current lawsuit, which coworkers he spoke to about opting out of the prior settlement, and whether any coworkers would be witnesses in his lawsuit.
Whether Lugo had filed grievances in the past about discipline he received.
Lugo's knowledge of and relationship with union shop stewards.
Lugo's opinion on whether the shop stewards were responsive to employee complaints and concerns.
Questions like these can be illegal for a variety of reasons, including because they interfere with the rights of workers to engage in protected activity in a confidential way without disclosing their activity to their boss.
Under Guess?, determining whether such questions violate the NLRA is done by applying a three-part test:
Are the questions relevant?
If relevant, do they have an illegal objective?
If relevant and no illegal objective, does the employer's interest in the information outweigh the employee's Section 7 confidentiality interests?
The ALJ determined that none of the questions had an illegal objective, but some were irrelevant and others failed the third prong of the test. All of them were therefore unlawful under the NLRA.
2. Skid Row Downtown Limited Liability Company, 02-RC-332821 (Unpublished Board Decision)
The union filed a petition for a union election on December 11, 2023, withdrew it on December 29, 2023 and then refiled it on January 3, 2024. This allowed the union to get access to the new election process resulting from the NLRB’s recent rulemaking, which went into effect on December 26, 2023. The employer objected to this gamesmanship, but the regional director rejected the objection. The employer requested that the Board review the regional director’s decision and provide relief from it. The Board denied this request.
3. New Flyer of America (KMG), 09-RD-320437 (Unpublished Board Decision)
On February 7, 2023, the employer voluntarily recognized the Communications Workers of America (CWA) as the exclusive bargaining representative of a unit of about 330 employees. The employer posted a Voluntary Recognition Notice on May 23, 2023, triggering a 45-day window for employees to file a decertification petition under Section 103.21 of the NLRB's rules.
Sowder filed a decertification petition on June 22, 2023 with a showing of interest that included signatures pre-dating the voluntary recognition. The Region told Sowder she needed to submit at least 99 post-recognition signatures by July 7 to avoid dismissal.
Sowder attempted to fax additional signatures to the Region on July 7, but the fax pages were blank. She left a voicemail for the Board agent that afternoon but did not receive a response. The Regional Director then dismissed the petition based on an insufficient showing of interest.
On review, the Board majority found that Sowder made an honest, good-faith effort to comply with the Region's requirement to submit post-recognition signatures within the 45-day window. Given her prompt attempt to substantially comply, the Board held that the additional signatures should have been accepted as timely.