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In this Issue:

News and Analysis

The Good, the Bad and the Ugly

By Bob Lemert
Atlanta Office


NLRB ruling could jeopardize integrity of employer investigations. The Obama Board has done it again! In its July 30, 2-1 decision in Banner Health System, the Board ruled that advising employees not to discuss an ongoing investigation with co-workers violates Section 8(a)(1) of the National Labor Relations Act. The company had a standard "Interview of Complainant Form" with instructions that included telling employees not to discuss the matter with co-workers while the investigation was taking place. During interviews of employees making a complaint, company representatives followed the instruction. An administrative law judge found that the suggestion was lawful because it was intended to protect the integrity of the investigation, similar to sequestering witnesses to ensure that they give their own, untainted, versions of the facts.

Democrat Board Members Richard Griffin and Sharon Block reversed, finding that an employer's generalized concern with protecting the integrity of its investigation is insufficient to outweigh employees' Section 7 rights. According to Griffin and Block, an employer must first determine whether in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover- up. According to the Board majority, Banner Health's "blanket" approach clearly failed to meet these requirements and, thus, violated the Act.

Republican Board Member Brian Hayes dissented on the ground that confidentiality was requested by the company but not required. It is noteworthy that not even Hayes argued that an employer simply had the right to require employees to keep ongoing investigations confidential.

We'll continue to monitor this important subject. In the meantime, at least one office of the U.S. Equal Employment Opportunity Commission has reportedly taken a similar position in the Title VII context.

Employers who want to limit off-duty access must go all the way. In Sodexo America LLC, the NLRB has effectively invalidated any no-access rule that has exceptions – any exceptions. Sodexo handles the cafeteria and food-service operations for USC University Hospital, a large acute-care hospital in Los Angeles. The hospital policy provides that off-duty employees cannot enter the facility unless they are visiting patients, are patients themselves, or are there "to conduct hospital-related business." The last category "is defined as the pursuit of the employee's normal duties as specifically directed by management."

The case concerned four off-duty employees who were disciplined for violating the rule. There was no evidence regarding the reason that they were in the facility while off duty. The unfair labor practice charge alleged that the mere existence of the rule was a violation of Section 8(a)(1) of the NLRA. An administrative law judge dismissed the complaint, finding that the rule did not restrict employees any more than members of the public.

Board Chairman Mark Pearce and Member Griffin reversed the ALJ's decision. Member Hayes dissented. According to Pearce and Griffin, the NLRB established the legal standard for off-duty employee access to a facility in Tri-County Medical Center, in which the Board held that such a rule was valid only if it limited access solely to the interior of the facility, was clearly disseminated to all employees, and applied to off-duty access for all purposes, not just union activity. More recently, in the 2011 decision Saint John's Health Center, the Board found that a policy barring off-duty access, with an exception for employer-sponsored events, violated the Act because the employer (according to the Board) was essentially telling its employees, You may not enter the premises after shift except when we say you can. Pearce and Griffin said that Sodexo's exception for "hospital-related business" provided management with unfettered discretion to permit off-duty employees to enter its facility "as specifically directed by management." Therefore, the policy violated the Act. On a more positive note, Pearce and Griffin did hold that the exceptions for visiting patients or seeking medical care did not make the policy unlawful under the Tri-County standard.

In his dissent, Hayes argued that the Board majority's unduly restrictive interpretation of the Tri-County standard was not supported by Board law or principles. According to Hayes, the majority ruling meant that an off-duty access policy would be invalid if it also allowed employees to engage in such activities as picking up paychecks, completing employment-related paperwork, or filling out patient information.

Although Sodexo deals with a health care employer, the position of the Board also applies to non-health-care employers.

Post-discipline discussion triggers Weingarten rights. In NLRB v. J. Weingarten, the Supreme Court held that an employer violated Section 8(a)(1) of the Act when it denied an employee's request that a union representative be present at an interview that the employee reasonably believed might result in discipline. A recent decision by the Board expands this so-called "Weingarten right" to include a situation where, after the employee received a warning, there followed a discussion of another, unrelated performance issue for which the employee was told he was not "in trouble." In General Die Casters, the employee was given a warning for violating the employer's training pay policy. That part of the meeting did not involve any Weingarten rights because the company had already made the decision to discipline the employee before the meeting began. However, after the employee received his warning, the plant manager told him that he wanted to discuss an issue involving the employee's immediate supervisor. At that point the employee asked twice whether he "needed to get somebody else in here." The plant manager said no and then began talking to the employee about the manner in which he had been questioning his immediate supervisor about his job assignments. The plant manager said that the employee was showing "the kinds of traits that had got you into trouble in the past." When the employee asked if he was in trouble, the plant manager said that he saw some things that the employee had not done in a while "that are starting to creep up again and that have gotten you in trouble in the past." The employee agreed that in the past he and his supervisor had argued, but said, "I ain't doing no stuff like that and you know I'm not." The meeting ended shortly afterward, and the employee received no discipline. An ALJ found that the employer had violated the employee's Weingarten rights with respect to the second phase of the discussion.

Pearce and Griffin agreed, finding that the second phase of the discussion was "investigatory" in nature. Hayes once again dissented, saying that the meeting was not investigatory. "It involved the predetermined imposition of discipline on [the employee] and subsequent discussion of a second, unrelated performance issue for which [the employee] was specifically told he was not 'in trouble.'"

Union's unauthorized, misleading message on contract cover violates NLRA. An ALJ has decided that the California Nurses Association, National Nurses Organizing Committee, violated both Section 8(b)(3) and Section 8(b)(1)(A) of the Act by printing on the back cover of an agreed upon contract a version of Weingarten rights that was both misleading and never discussed during contract negotiations. In April 2009, the employer and the union reached agreement on a contract that was to be printed by the union with copies provided to the employer. Nineteen months later the union provided copies of the contract to the employer. On the back cover was printed language termed "The Weingarten Rights." The language was not discussed during bargaining, and the employer did not agree to include the language on the cover. In fact, in earlier negotiations the employer had objected to including this text on the back cover of the contract. Thus, the union's inclusion of the language violated Section 8(b)(3) of the Act. The ALJ also found fault with the following statement: "You must request that a CNA rep be called in the meeting." (Emphasis added.) According to the ALJ, this statement could give employees the false impression that they were required to have a union representative at disciplinary meetings, whether they wanted one or not. Weingarten makes clear that an employee may forgo this guaranteed right, and if he or she prefers, may participate in an interview without a union representative. The nurses' union argued that it had no duty to inform employees of the right to forgo union representation, but the ALJ said that was missing the point – the language "trampled on the right" of employees to do so. The ALJ also found the statement to be ambiguous: under one interpretation, it meant that employees were required to request union representation; under another interpretation, it meant that employees needed to request union representation if they wanted it because the employer would not automatically bring in a union representative. Because one interpretation could reasonably be understood as forcing employees to request a union representative for disciplinary meetings, the statement restrained and coerced employees' exercise of their Section 7 right to refrain from engaging in union activity and, therefore, violated Section 8(b)(1)(A).

In "quickie election" challenge, court rejects NLRB's "electronic room" theory; NLRB appeals. As we reported last issue, the NLRB filed a motion with the U.S. District Court for the District of Columbia asking the court to reconsider its ruling that the new "quickie election" rules were invalid because they were not adopted by a "properly constituted" three-member quorum of the Board. The NLRB argued for the first time in its motion to reconsider that Member Hayes was actually "present and participating" in the Board's "electronic room" where the other two Board members approved rule changes. Judge James E. Boasberg denied the NLRB's motion, saying that the "electronic room" information should have been presented when the court was originally considering the challenge to the new election rules brought by the U.S. Chamber of Commerce. The judge also said that even if he had considered the "electronic room" evidence and argument, it did not establish that Member Hayes was present as part of a three-member quorum or that he abstained from voting on the rule changes. Finally, Judge Boasberg observed that there was nothing to prevent the NLRB from voting again on the rule changes with a properly constituted quorum. The NLRB has appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit.


UAW effort to organize Nissan plant faces roadblocks. We've previously reported on the UAW's attempt to organize Nissan's plant in Canton, Mississippi. According to an article in the pro-union Labor Notes, the UAW's efforts face some roadblocks. First, the union has been rebuffed and has reportedly stopped trying to get German, Japanese, and Korean auto manufacturers – including Nissan – to accept its "Principles for Fair Union Elections." The Principles, put forth in 2011, sought to give the union and the companies equal access to the employees and would have prohibited disparagement of one side by the other. The union can't emphasize wages because regular employees at the Nissan plant are making top pay of more than $23 an hour, which isn't far behind the top pay for workers at the "Big Three" Ford, General Motors, and Chrysler. The union can't emphasize pensions, even though the Nissan workers have 401Ks only, because the same is true of workers at the Big Three. Finally, a large portion of the Nissan workforce is temporary, which the union isn't trying to organize because Nissan isn't their employer

According to the article, the UAW is hoping to emphasize workloads and get support from local clergy, politicians and the NAACP, all of whom are trying to invoke Mississippi's civil rights tradition.

Unions stealth-spend a bundle to "influence" election outcomes. Big labor's super PAC will raise millions to support President Obama and other pro-labor politicians in the November elections. But, according to a recent article in The Wall Street Journal, unions spend even more to "indirectly" influence the outcomes of elections -- about four times as much -- by supporting state and local candidates, and persuading their membership to vote the "right" way. Much of this "influence" spending comes not from PACs but from the unions themselves, and does not have to be reported to the Federal Election Commission.

The article reports that in 2008 labor unions were responsible for $75 million in political donations, with 92 percent of that total going to Democrats. The top political spender among all unions is the Service Employees International Union, which reported spending $150 million on politics and lobbying in 2009 and 2010, up from $62 million in 2005 and 2006. Although corporations and their employees spend even more, their donations are more evenly distributed among the political parties. (Interestingly, 55 percent of corporate and employee donations went to the Democrats in 2008.)

"Democracy died tonight, man!" "Occupy Wall Street!" "San Dimas High School football rules!" Two articles in the July issue of Labor Notes readily admit the obvious – the power of the organized labor movement has declined to a point where unions can no longer play a role of "creating a shared working class common sense." The authors of both articles point to organized labor's failure to succeed in the recall of Wisconsin Governor Scott Walker as an example of this decline. However, both writers believe that the various Occupy movements were "game changers," "taking aim squarely at the 1% and succeeding where unions had stumbled, by turning national attention back onto those responsible for the economic collapse." Both writers call for direct action by local unions, saying that the national unions are not stepping up. Both writers make it clear that the enemy of the labor movement is corporate power made possible by capitalism. One writer says the labor movement should "aim at the true culprits" and "make every fight into a fight about the 1%" - "It's the perfect time to ask hard questions about the system we're in – capitalism – and why it is leaving so many of us further and further behind." The second writer calls for "direct action" organizing. Each union or group should pick an arm of corporate power to go after and make fighting it and organizing it a cause of its own. "Plan on years of doing it. Become experts on that piece of the enemy. Make them your hobby. Expose them. Ridicule them. Occupy them. Use stealth and upfront attacks. Whether it's picking an industry to organize or a bank to torture, or agribusiness to expose, pick one and have at 'em. Fight what they do. Fight who they are."

New union strategy against Walmart – keep your dirty money! Unions in Los Angeles are reportedly pressuring politicians to refuse campaign donations from Walmart, in the hope that the effort will force the retailer to pay higher wages, which they hope will in turn cause smaller retailers to do likewise. Los Angeles County has an unemployment rate of 11.4 percent, so not everybody is on board with annoying a big employer like Walmart. Most notably, Los Angeles Mayor Antonio Villaraigosa, a former union organizer, has sidestepped the controversy, saying only that he supports "healthy food in L.A. neighborhoods that aren't currently served by enough grocery options."

About Constangy, Brooks & Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 130 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit

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