In Century Restaurant and Buffet, Inc., 22-CA-029242 (March 27, 2012), the NLRB determined that defense counsel’s deposition questions regarding employees’ union activities violated Section 8(a)(1) of the National Labor Relations Act. Employers may violate the Act even when their attorneys ask questions at a deposition that are not necessarily beyond the bounds of relevance under the Federal Rules of Civil Procedure. 

Several wait staff employees met with a union representative regarding complaints about their jobs at a Chinese restaurant. Specifically, the employees were upset about side work they had to perform, tip-sharing with their manager, and having to pay for their transportation to work each day. At the time, the union did not represent the employees, but the union representative agreed to locate an attorney to help them with their wage and hour concerns. Subsequently, the three employees filed a federal lawsuit alleging violations of the Fair Labor Standards Act and the New Jersey Wage and Hour Law.  

Almost two months after the federal lawsuit was filed, the union filed a representation petition seeking an election for a unit of wait staff employees. Thereafter, union representatives and the employer agreed on terms for a withdrawal of the representation petition, and the employer recognized the union as the representative of the wait staff employees. The union and the employees, however, did not agree to dismiss the federal lawsuit as one of the terms, and the parties moved forward with the lawsuit and scheduled depositions of the employee plaintiffs. 

At the depositions, the restaurant’s counsel asked the employees: whether they were members of the union; when they became members of the union; whether each of the other plaintiffs were union members; whether they spoke to other union members about the litigation; whether they attended union protests on a weekly basis; and whether they had any agreements with the union related to the outcome of the litigation. The union filed an unfair labor practice charge, alleging that such questions violated the NLRA.

Pursuant to Guess?, Inc., 339 NLRB 432 (2003), the Board applies a three-part test to determine if deposition questions are unlawful: (1) whether the questions are relevant to the underlying litigation; (2) if relevant, whether the questions have an illegal objective; and (3) if relevant and without an illegal objective, whether the employer’s interest in obtaining the information outweighs the employees’ confidentiality interests under Section 7 of the Act.

The employer argued that its counsel’s questions were seeking information relevant to the defense of the lawsuit. The Board acknowledged that the Federal Rules of Civil Procedure permit a broad interpretation of “relevance,” but it determined the attorney’s questions were not relevant to the areas of inquiry the attorney claimed were important. The Board ultimately concluded that questions about whether employees were union members, when they became union members, or whether they had participated in any protests, were not relevant to the employees’ federal litigation. 

Finally, regarding the third prong of Guess?, the Board found that the employees’ confidentiality interests outweighed the employer’s need to know the information concerning their union activity. Further, citing Chinese Daily News, 353 NLRB 613 (2008), the Board determined that the fact that the employees were questioned openly and with their attorneys present did not minimize the impact of the unlawful interrogation or make the questions less coercive. Thus, the Board concluded that the employer violated Section 8(a)(1) of the NLRA.

The Century Restaurant and Buffet decision reminds employers that even when they voluntarily recognize a union they may violate the NLRA by asking employees about their union activity directly or indirectly via counsel through otherwise permissible questions in a separate legal proceeding. Not surprisingly, the Board will side with protecting employees’ Section 7 rights over upholding a party’s right under procedural authority to inquire about a broad array of matters. Accordingly, when involved in litigation with employees who are members of a union, employers and their counsel should generally steer clear of questions concerning employees’ union activity or be especially confident that such a line of questioning is relevant to the litigation at hand.