Not true when coined decades ago and not true today. So beware when an NLRB agent comes to investigate an unfair labor practice charge against your company and know with certainty that they are not there to help you.
Even though every employer with at least two employees is a potential target of an unfair labor practice charge, most employers still do not know their rights in an NLRB investigation.
NLRB agents often try to obtain an “affidavit” from an unsuspecting employer. The NLRB agent, who is him/herself a union member, claims to be a neutral investigator just trying to find facts. However, the agent will ask the employer questions designed to find violations of the law, document those answers, and present them to the employer in the form of an affidavit.
The unsuspecting employer will sign the affidavit. This is a big mistake, because the NLRB will use the affidavit to support an unfair labor practice complaint against the employer and to impeach the employer’s testimony at trial. In one recent case, the employer’s CEO provided an affidavit to the NLRB which came back to haunt him. The judge repeatedly found that the CEO’s trial testimony contradicted the affidavit and could not be believed. Of course, the judge found unfair practice violations against the company.
Employers need to know that they have no legal obligation to provide the NLRB with a signed affidavit. It’s OK to just say “no.” The employer in the case described above could have avoided this costly error had the CEO known his rights.
Every employer’s toolbox should include knowledge of the process, your rights when responding to a NLRB charge and investigation, and the scope of the NLRB’s investigatory power.
Contributed by Don Scharg, Bodman PLC.
View the on-demand webinar “NLRB: Handling an Unfair Labor Practice Charge Investigation” with Don Scharg.