Friday, January 16, 2009, 10:28 AM

Asking the Right Questions

When defending employment litigation, attorneys want to be certain they have covered all the bases, so when counsel for Chinese Daily News was deposing the named -plaintiff and two others who had filed declarations supporting class certification, he asked each "questions related to their union sympathies and union-related activities" - a natural line of inquiry since it appeared that the litigation was part of a long-simmering feud between the largest Chinese-language newspaper in North America and the Communications Workers of America.

A principle of US labor law which often traps the unwary is that employer efforts to prohibit or inquire into employee discussions of "matters of common concern" are generally deemed to be an interference with "protected concerted activity" and, therefore, constitute an unfair labor practice. This concept applies even in the absence of a union, and the National Labor Relations Board is of the view that policies or practices which ban disclosure of compensation and benefits and forbid discussions on the subject are per se violations of the law.

These two forces collided when the CWA, as part of their 9-case NLRB litigation, challenged the deposition questions as improper. Lana H. Parke, an Administrative Law Judge ruled that the employer's "significant interest in defending itself" trumped the employees' rights, particularly since the questioning dealt with the activities of the three individuals and not their interactions with others. The Union appealed to the "full" NLRB - currently consisting of only two members due to squabbling over recess appointments to the body. The two Board members concluded that asking one of the individuals how he had voted in the representation election crossed the line - even though he was an open Union supporter - because of the overriding interest in maintaining the confidentiality of the voting process. See www.nlrb.gov/shared_files/Board%20Decisions/353/v35366.pdf.

This decision takes on even more significance in light of current efforts to eliminate Board-supervised elections altogether and a push to afford even greater protections to employees' conversation about pay and benefits. A full appreciation of how all of these considerations interplay is essential to an employer's approach to the challenges of today's workplace.

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