The National Labor Relations Board (NLRB) has remanded a 2013 decision to an administrative law judge to determine whether the Board’s landmark 2017 decision on work rules and policies affects its 2013 determination that a union did not violate National Labor Relations Act (NLRA) Section 8(b)(1)(A) by unilaterally including a Weingarten rights statement on the back cover of a collective bargaining agreement and distributing that agreement to employees. California Nurses Association, National Nurses Organizing Committee, 31-CB-012913 (Mar. 4, 2019).

In the 2013 decision, California Nurses Association, 359 NLRB 1391, the NLRB also decided the union’s unilateral action ran afoul of the NLRA’s requirement under Section 8(b)(3) of the NLRA. The Board did so based on the parties’ “clear understanding that the printed contract would not contain the Weingarten statement.”

The Weingarten Rights Statement

The Weingarten rights statement in dispute read as follows:

The Weingarten Rights

The Supreme Court has ruled that an employee is entitled to have a CNA Representative present during any interview which may result in discipline. These rights are called your Weingarten Rights.

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 Section 8(b)(1)(A) issue focused on the language “You must request that a CNA rep be called into the meeting.”

Original Decision Vacated

This case has a complicated history. In 2014, the Board vacated and retained for “further action as appropriate” its 2013 California Nurses Association decision following the U.S. Supreme Court invalidating numerous Board decisions because the composition of the Board at the time of the decision included two persons whose appointments were constitutionally infirm.

In 2018, the Board reconsidered and affirmed its 2013 decision that the union’s unilateral action ran afoul of NLRA Section 8(b)(3) bargaining requirements as contrary to the parties’ clear understanding. California Nurses Association, 31-CB-012913 (Nov. 14, 2018) (unpublished). (The Board left the door open to finding, in a future case, that a union’s unilateral inclusion of a Weingarten rights statement in a collective bargaining agreement violates Section 8(b)(3) on an additional basis. In the 2018 decision, the Board stated that “it [is] unnecessary to pass on . . . the additional rationale that the [union] also unlawfully modified the contractual disciplinary procedure in the parties’ collective-bargaining agreement.”) The Board required the union — at its own expense — to reprint and redistribute the collective bargaining agreement without the Weingarten language. It also decided to retain “for further consideration” the Section 8(b)(1)(A) allegation.

The Section 8(b)(1)(A) Issue

Section 8(b)(1)(A) makes it unlawful for a labor union to restrain or coerce employees in the exercise of their Section 7 rights. Section 7 protects the right of represented employees to refrain from exercising their Weingarten right to union representation. In 2013, deciding the union had not violated Section 8(b)(1)(A), the Board applied its then-existing test for determining whether a work rule is lawful. According to the 2013 Board, under that test, provisions must be read in their context and improper interference with employee rights should not be presumed. The Board decided that employees would not reasonably understand “The Weingarten Rights” statement to restrain their right to forgo union representation at a disciplinary interview.

In 2017, in The Boeing Co., 365 NLRB No. 154, the NLRB created a new, employer-friendly standard for determining whether a work rule or policy has been unlawfully maintained that applies retroactively to all pending cases. That standard requires balancing the “the nature and extent of the potential impact on NLRA rights” against the “legitimate justifications associated with [a] rule.” An administrative law judge must now issue a decision addressing whether and to what extent the 2013 decision is affected by Boeing.

This case is another example of the Trump Board and NLRB General Counsel taking a close look at possible union misconduct. The General Counsel, for example, has directed field office staff to prosecute a broader array of cases than previously against unions that engage in negligent behavior toward their members.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.