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The NLRB in 2000: Old Rules and the New Economy

December 31, 2000

In the year 2000, the National Labor Relations Board (the "NLRB" or "Board") issued a number of noteworthy and far-reaching decisions, some of which greatly alter the landscape of labor-management relations, including two decisions that reversed longstanding and well established case law.

Weingarten Rights Extended to Non-Union Employees

In its seminal decision in NLRB v. J. Weingarten, 420 U.S. 251 (1975), the U.S. Supreme Court, affirming a decision of the NLRB, ruled that an employer violates the National Labor Relations Act (the "NLRA") if it denies an employee's request to have a union representative attend an investigatory interview which the employee reasonably believes might result in discipline or discharge. In what may have been its most striking decision in 2000, a sharply divided Board ruled in Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. No. 92 (2000) that the rights set forth in Weingarten apply equally in a non-union setting. Accordingly, a non-union employee now has the right under the NLRA to request the presence of a co-worker at an investigatory interview.

Over the years, the Board has flip-flopped on this issue several times, but in 1985 issued a decision -- which has been followed until this year -- that Weingarten rights were limited to unionized employees. Sears, Roebuck & Co., 274 N.L.R.B. 230 (1985). The Sears decision, in turn, overruled a 1982 decision, entitled Materials Research Corp., 262 N.L.R.B. 1010 (1982), in which the NLRB extended the Weingarten rights to non-union employees.

In the Epilepsy Foundation case, a 3-2 decision, the NLRB has now returned to the position originally adopted in Materials Research, and has ruled that the rights set forth in Weingarten apply equally in a non-union setting. The Board reasoned that a non-union employee's request to have a co-worker present at an investigatory interview constitutes activity for mutual aid in much the same way as a unionized employee's request for the presence of a union representative: in both situations the observer (whether union representative or co-worker) enhances the employees' opportunity to ensure that discipline is not imposed unjustly.

Epilepsy Foundation is unquestionably a significant decision of which all employers -- and particularly non-union employers, who are not accustomed to dealing with the strictures of the NLRA -- must take account in the disciplinary process. Nevertheless, it is also important to appreciate the limits of the Weingarten doctrine. First, an employee's right to have a union representative (or co-worker) present arises only in the context of an investigatory interview – an interview conducted for the purpose of gathering facts; Weingarten has no application to other types of meetings, such as where the employer is merely informing the employee of a decision it has already made to impose discipline. Second, the right to have a union representative (or co-worker) present arises only upon the employee's request. Third, if such a request is made, the employer is not required to proceed with the interview; that is, the employer has the right to refrain from conducting the interview altogether and to make its decision regarding discipline without the employee's input and on the basis of other available information. Fourth, if the interview proceeds, the role of the union representative (or co-worker) is only that of an observer and/or spokesperson for the employee; the employer is not required to bargain with the representative nor to permit the representative to disrupt the proper conduct of the interview.

NLRB Facilitates Organization of Temporary Workers

Another decision issued by the Board this year which reversed established precedent concerns the organizational rights of temporary employees assigned by a placement agency to work on the premises of the agency's client company. M.B. Sturgis Inc., 331 N.L.R.B No. 173 (2000). Until this year, the temporary workers (who are typically employed by and on the payroll of the agency) could not be placed into a bargaining unit with the agency's client's regular employees unless both the agency and its client consented. Needless to say, such consent was rarely provided. Thus, if a union desired to organize these temporary employees, the union would have to organize a separate, appropriate unit of employees of the agency. These employees, however, are ordinarily assigned to numerous different locations, making the task of organizing them exceedingly difficult.

In M.B. Sturgis, the Board -- perhaps influenced by the explosion in the use of temporary workers throughout the American economy -- determined that these temporary employees can be included in a single bargaining unit with the employees of the agency's client. This ruling, of course, creates several problems for employers. First, a unit co-mingled with regular and temporary employees poses unique difficulties in negotiating a single contract for all of the employees in the unit; indeed, there are likely to be stark differences between temporary and regular employees' views on compensation and work rules. Further complications arise from the fact that the temporary agency (and not the client) controls many of the employees' terms and conditions of employment. Yet another potential problem created by the decision is that, in the event that an employer's permanent employees are already union members, a union may now seek to have the temporary employees "accreted" (added) to the existing unit without a secret ballot election conducted by the NLRB.

Interestingly, however, the Board did not determine whether such a co-mingled unit would be an appropriate unit in the two cases before it in M.B. Sturgis, but rather remanded that issue for determination by the Regional Directors in the local Board offices where the cases originated. Even where a particular unit is permitted by law (such as, under M.B. Sturgis, a combined unit of temporary agency and client employees), the unit must still be deemed "appropriate" in order to be certified by the NLRB; that determination is made by reference to a test which analyzes the similarities and differences between groups of employees that make up that unit (referred to as the "community of interests" test). In many cases, there will be strong arguments that the agency and client employees do not share a "community of interest," and that it is therefore inappropriate to combine them in a single unit. Consequently, it is unclear just how far-reaching the M.B. Sturgis decision will be.

NLRB Strikes Down Limit on Union Solicitation

Another year 2000 decision by a divided panel of the Board concerned a topic that is important for all employers targeted with a union organizing campaign -- the employer's right to prohibit union solicitation on its premises. In Albertson's, Inc., 332 N.L.R.B. No. 104 (2000), the Board held that the employers at issue unlawfully barred union members from distributing handbills outside several grocery stores.

Generally, an employer is permitted to bar solicitations by non-employee union organizers on company property so long as it also bars all other types of solicitations as well. In other words, so long as an employer's no-solicitation rule is non-discriminatory toward union activities, it is perfectly lawful under the NLRA.

In Albertson's, the Board found that the employer regularly granted access to its premises to several youth, school, and veterans organizations, as well as the Salvation Army, to solicit donations and sales. The employer argued that the civic and charitable groups whose solicitations were permitted were not comparable to a union and that it therefore did not unlawfully discriminate against unions by prohibiting their solicitations. Indeed, the employer put forth evidence that it consistently prohibited solicitations on its property by political groups and other non-charitable organizations.

The Board majority, however, ruled that the employer's prohibition of union solicitation was unlawful even in light of the employer's longstanding policy to permit "charitable" solicitations while prohibiting all "commercial" and political solicitations (including union solicitations).

The Board first determined that where solicitation by other organizations frequently is allowed, the fact that much of that solicitation is charitable or otherwise non-controversial does not preclude a finding of discrimination on the basis of the prohibition against union solicitation. Next, although the Board has recognized previously that an isolated exception to a no-solicitation policy to permit solicitation for charitable and other similar causes does not necessarily render a no-solicitation policy discriminatory and unlawful, the Board determined here that "the number and frequency of the solicitations permitted by the Respondent exceed the small number of isolated beneficent acts that the Board regards as a narrow exception to an otherwise valid, nondiscriminatory no-solicitation policy."

In light of Albertson's, all employers should review their no-solicitation policies and especially their actual practices in applying those policies. While many employers may be reluctant to apply their policies to prohibit all forms of solicitation, including solicitation by charitable organizations, they should be aware that permitting even limited exceptions may literally open the door to solicitation by union representatives.

NLRB Permits Organization of Teaching Assistants

Also in 2000, a seemingly enormous victory was handed to unions seeking to organize student teaching assistants in the nation's colleges and universities. The NLRB recently ruled that New York University's graduate assistants (also known as teaching assistants and research assistants) are "employees" as defined by Section 2(3) of the National Labor Relations Act. New York University, 332 N.L.R.B. No. 111 (2000). This ruling permits NYU's graduate assistants to organize under the protection of the NLRA. Citing its 1999 decision extending organizational rights to hospital interns and residents, the Board first determined that "students" are not automatically excluded from the definition of "employee" under the Act. The Board then ruled that NYU's teaching assistants were, in fact, "employees" because they perform services for the University, under the University's control and direction, and in exchange for payment from the University (in the form of tuition credits). The Board also rejected the university's contention that the work of the teaching assistants was primarily "educational" in character, noting that the vast majority of assistants at NYU were not performing their services as part of a degree requirement.

Thus, the New York University decision gives the green light to union efforts to organize teaching assistants at other institutions, although a federal court challenge to the Board's ruling appears likely.

Employee Committee Survives Board Scrutiny

Recent years have witnessed a significant increase in the use of employee committees in both union and non-union settings to aid in the crafting of employer policies, working conditions and other terms and conditions of employment. This traditional Japanese method of employee participation has come under challenge, particularly in unionized workplaces, on the grounds that it violates the NLRA's prohibition on "direct dealing" with employees who have designated a union as their representative for purposes of collective bargaining. Based on this theory, the Board has generally prohibited the use of employee committees, quality circles, and the like, for the setting or altering of employer work policies in the absence of union negotiation.

In The Permanente Medical Group, Inc., 332 N.L.R.B. No. 106 (2000), however, the Board recently determined that a hospital's inclusion of unionized nurses and physical therapists in a series of "job-redesign" meetings did not violate the NLRA. The Board found that the employer's discussions with the union employees were not "for the purpose of establishing or changing terms and conditions of employment or undercutting any union efforts to negotiate." Rather, as the employer advised the employees at the meetings, their discussions were designed only to permit the employer to elicit information to formulate a job-redesign proposal to be bargained collectively with the union. That is, the employer never attempted to exclude the union from the bargaining process. Indeed, the employer kept the union informed of the meetings and their subjects, and stated explicitly that the result of the meetings would be recommendations to be presented for bargaining.

The Permanente decision seemingly permits employers to include union-represented employees in discussions concerning changes in terms and conditions of employment provided the process is not used in order to bypass the union. As such, the Board appears to be recognizing the value of direct employee participation in the formulation of management decisions.

Obligation to Provide Information

It is settled law under the NLRA that an employer is required, upon request, to furnish to a union representing its employees information necessary to enable the union to fulfill its obligations as bargaining representative. This year, the Board came within a single vote of striking down a 22 year old rule that an employer is not required to provide to a union the witness statements obtained by an employer during a disciplinary investigation of an employee. Fleming Cos., 332 N.L.R.B. No. 99 (2000).

In Fleming, an employee was suspended and then fired, allegedly for insubordination, using the telephone on company time, and accepting an expense reimbursement in excess of the amount requested. In anticipation of the arbitration process, the union requested various documents, including the terminated employee's personnel file, copies of all work rules, a list of the names, addresses, and telephone numbers of all bargaining unit members employed at the time of the alleged conduct, and witness statements. The Board unanimously concluded that the first three categories of documents constituted information "relevant and necessary to the proper performance of [the union's] duties as bargaining representative," and ordered that they be turned over.

With respect to the final category of documents -- witness statements obtained in investigatory interviews -- the Board has held for decades that such documents are not required to be produced by either the union or the employer. Anheuser-Busch, Inc., 237 N.L.R.B. 982 (1978). This rule was predicated on the Supreme Court's holding in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978), that the Freedom of Information Act does not require the NLRB, prior to an administrative hearing, to disclose witness statements to a party charged with a violation of the NLRA; the Board reasoned that, by analogy, a party to an arbitration proceeding should have no right to require production of statements prior to the arbitration hearing.

In Fleming, however, two of the four members of the Board hearing the matter expressed the view in a concurring opinion that the Anheuser-Busch rule should be overturned because the need for witness confidentiality in advance of an administrative hearing is far greater than the need for witness confidentiality prior to a routine arbitration. Instead, they argued that a more "flexible" balancing of the interests test should be utilized to determine if the requested statements (and witness identities) call for heightened confidentiality. The remaining two members of the Board declined to overturn Anheuser-Busch, although they noted that the question had not been addressed by the parties and that it therefore would not be fair to decide that issue. Because the Board members calling for the overruling of Anheuser-Busch failed to command a majority, the existing rule stands, and employers remain free to withhold from a union witness statements taken in the course of the disciplinary process. In view of the opinions expressed in Fleming, however, it is unclear how much longer that rule will stand.