For 15 years, the National Labor Relations Board has attacked employer policies and handbook statements for chilling<\/i> employees’ rights, protected by National Labor Relations Act Section 7, to engage in union activity\u2026 or not<\/i>. In Lafayette Park Hotel<\/i>, 326 NLRB 824 (1998), enfd<\/i>. 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.<\/p>\n
However, the July 2, 2013, decision by the three member, illegally recess appointed, Board in California Nurses Assn., National Nurses Organizing Committee<\/i>, 359 NLRB No. 150, is an aberration. At issue was a statement of employees’ Weingarten<\/i> rights added by the union and printed on the back cover of the bargaining agreement negotiated with Henry Mayo Newhall Memorial Hospital. Weingarten<\/i> 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<\/i>, 420 U.S. 251 (1975). Weingarten<\/i> rights are optional \u2013 a represented employee also has the right not to have a union representative present at a disciplinary interview.<\/p>\n
The statement added by the union, without the employer’s agreement, read: <\/p>\n
You must request that a CNA rep be called into the meeting.
\nYou must have a reasonable belief that discipline will result from the meeting.
\nYou 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.
\nDo not refuse to attend the meeting if a rep is requested but denied.
\nWe suggest you attend the meeting and repeatedly insist upon your right to have a CNA rep present.
\nIf this fails, we suggest that you not answer questions and take notes.<\/p><\/blockquote>\nThe Administrative Law Judge, a former NLRB Member, found the statement to violate the Act. Specifically, the ALJ reasoned that the union’s phrase \u00abYou must request\u00bb was ambiguous and could reasonably be read by bargaining unit employees to require<\/i> them to request a union representative contrary to the Weingarten<\/i> option not to do so. (it is odd that \u00abmust\u00bb could be found ambiguous because \u00abmust\u00bb clearly means \u00abare required\u00bb.) <\/p>\n
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 \u00abread in context of the Weingarten<\/i> statement as a whole…it is susceptible of only one reasonable interpretation: that if<\/i> an employee of the Hospital wishes to avail himself of the Weingarten<\/i> right…, then he must ask for a representative \u2013 because one will not be provided automatically.\u00bb The NLRB concluded \u00abthat employees would not reasonably understand the Weingarten<\/i> statement to restrain their right to forego union representation at a disciplinary interview.\u00bb <\/p>\n
The illegally recessed three converts \u00abmust\u00bb to \u00abmay\u00bb by inserting \u00abif\u00bb \u2013 \u00abthat if<\/i> an employee of the Hospital wishes to avail himself of the Weingarten<\/i> right to have a union representative present, then he must ask for a representative\u2013because one will not be provided automatically.\u00bb Thus, they permit unions to mislead employees into thinking that union representation is required during employer investigatory interviews. <\/p>\n
Represented employees have the right to the presence of a union representative in investigatory interviews that they reasonably believe may result in discipline, BUT<\/i> they also have the right NOT<\/i> to have a union representative present. The decision is the employee’s. With brazen manipulative \u00abreasoning\u00bb in this case, the illegal threesome ignores the second half of Section 7 of the Act, which specifically gives employees \u00abthe right to refrain from any or all of such activities,\u00bb i.e., \u00abself-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.\u00bb<\/p>\n
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?<\/p>\n
Last NLRB Watch: Response to Harry Reid and his nuclear option<\/a><\/p>\n