For 15 years, the National Labor Relations Board has attacked employer policies and handbook statements for chilling employees' rights, protected by National Labor Relations Act Section 7, to engage in union activity… or not. In Lafayette Park Hotel, 326 NLRB 824 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), the NLRB held that overbroad or ambiguous rules may be interpreted by employees as preventing them from engaging in statutorily protected conduct. To date, the NLRB has issued 108 decisions regarding the wording of employer policies and the Office of General Counsel, Division of Advice has issued 71 memoranda. Not surprisingly, the majority of decisions find specific employer policies unlawful.
However, the July 2, 2013, decision by the three member, illegally recess appointed, Board in California Nurses Assn., National Nurses Organizing Committee, 359 NLRB No. 150, is an aberration. At issue was a statement of employees' Weingarten rights added by the union and printed on the back cover of the bargaining agreement negotiated with Henry Mayo Newhall Memorial Hospital. Weingarten rights give represented employees the right to have a union representative present during an employer's investigatory interview that the employee reasonably believes may result in discipline. NLRB v. J. Weingarten, 420 U.S. 251 (1975). Weingarten rights are optional – a represented employee also has the right not to have a union representative present at a disciplinary interview.
The statement added by the union, without the employer's agreement, read:
You must request that a CNA rep be called into the meeting.
You must have a reasonable belief that discipline will result from the meeting.
You have the right to know the subject of the meeting and the right to consult your CNA rep prior to the meeting to get advice.
Do not refuse to attend the meeting if a rep is requested but denied.
We suggest you attend the meeting and repeatedly insist upon your right to have a CNA rep present.
If this fails, we suggest that you not answer questions and take notes.
The Administrative Law Judge, a former NLRB Member, found the statement to violate the Act. Specifically, the ALJ reasoned that the union's phrase "You must request" was ambiguous and could reasonably be read by bargaining unit employees to require them to request a union representative contrary to the Weingarten option not to do so. (it is odd that "must" could be found ambiguous because "must" clearly means "are required".)
On appeal, the illegally recess appointed, three member NLRB unanimously rejected the ALJ's finding that the union violated Section 8(b)(1)(A) by restraining or coercing employees in the exercise of their statutory rights. Rather, the NLRB held that "read in context of the Weingarten statement as a whole...it is susceptible of only one reasonable interpretation: that if an employee of the Hospital wishes to avail himself of the Weingarten right..., then he must ask for a representative – because one will not be provided automatically." The NLRB concluded "that employees would not reasonably understand the Weingarten statement to restrain their right to forego union representation at a disciplinary interview."
The illegally recessed three converts "must" to "may" by inserting "if" – "that if an employee of the Hospital wishes to avail himself of the Weingarten right to have a union representative present, then he must ask for a representative–because one will not be provided automatically." Thus, they permit unions to mislead employees into thinking that union representation is required during employer investigatory interviews.
Represented employees have the right to the presence of a union representative in investigatory interviews that they reasonably believe may result in discipline, BUT they also have the right NOT to have a union representative present. The decision is the employee's. With brazen manipulative "reasoning" in this case, the illegal threesome ignores the second half of Section 7 of the Act, which specifically gives employees "the right to refrain from any or all of such activities," i.e., "self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
Will the newly constituted five Member Board continue the illegal recess Board's practice of ignoring and legitimating union deprivation of employees' rights to refrain?
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