General Counsel for NLRB Proposing to Re-Visit Employee Representation in Non-Union Settings & Unilateral Employer Action in Collective Bargaining

October 19, 2021 

As mentioned in my article several weeks ago, the General Counsel for the National Labor Relations Board (NLRB or Board) sought to revisit numerous Trump/Bush Board decisions.  This article will discuss two disparate decisional areas:

• Representation of non-union employees during a potential disciplinary investigation.
• When can an employer act unilaterally during the pendency of a collective bargaining agreement?

REPRESENTATION IN A NON-UNION SETTING

The question of a non-union employee’s right to have a co-worker present during an investigative interview that the employee “reasonably believes” might result in a disciplinary event has been a flash point of Board thought in the last 40 years. In 1975, the Supreme Court ruled in NLRB v J. Weingarten that a union employee has a right upon request to a union representative at a disciplinary interview.

The Court’s logic for the need for such representation is based on the assumptions that the union representative:

1. Is trained to represent employees;
2. Has knowledge of the collective bargaining agreement under which the parties work and will ensure that the employee is treated fairly within the language of the collective bargaining agreement, thus equalizing the power positions between the employee and his employer; and
3. Represents all bargaining unit employees.

However, the Court acknowledged that this was a “permissible” read of the National Labor Relations Act (the “Act”). It further noted that a non-union employee may also have a right to representation, but that issue was not in front of the Court.  Fast-forward to 2000 and the Clinton  NLRB extended that right to non-union employees in Epilepsy Foundation of Northeast Ohio.  Both the Court and the NLRB has noted that the right to representation stems from Section 7 of the Act, which affords employees the right to… “engage in certain activities for the purpose of mutual aid or protection.”  Since the NLRB tends to interpret certain activities differently depending on the political party in power, four years after Epilepsy the Bush Board in IBM Corporation reversed the decision, noting that it is inappropriate in a non-union setting to have an employee representative assist another employee because an employee co-worker does not:

1. Represent the interest of the entire workforce;
2. Cannot redress any perceived imbalance in power between the employer and the employee; and
3. May compromise the confidentiality of information.

For purposes of this discussion, the nuances of labor law are not important.  What is important, however, is that the current NLRB General Counsel is looking at re-visiting the Clinton Board decisions reinstating the Epilepsy decision.  As a result, non-union employees may once again have a right to having a fellow employee representative upon request at a disciplinary hearing when that employee reasonably believes he may be disciplined.

WHAT IS PERMISSIBLE EMPLOYER UNILATERAL ACTION DURING THE PENDENCY OF A COLLECTIVE BARGAINING AGREEMENT, I.E. IS THERE A  “WAIVER” OF THE UNILATERAL ACTION BY THE UNION?

A collective bargaining agreement is not a perfect agreement capable of contemplating all the vagaries of an employer/union relationship.  The NLRB has wrestled with this issue for many years.  Prior to 2019, the NLRB held a position known as “clear and unmistakable waiver.”  The theory was that in order for an employer to act unilaterally, i.e. without bargaining with its union, the subject matter must have been specifically referenced in the collective bargaining agreement. Consequently, the NLRB would find that a unilateral action that was not specifically referenced violated the Act, and the employer’s action would then rescind, and the parties returned to status quo ante. In many instances this result would then have significant financial implications. That position was reiterated under the Obama Board in Provena St. Joseph Medical Center (2007).  However, the “clear and unmistakable waiver” theory had been rejected by the Court of Appeals for the DC Circuit along with two other federal courts of appeal as being unrealistic and creating a situation where the NLRB interfered in the rights of the parties to the collective bargaining agreement.

In 2019 in MV Transportation Inc., the Trump Board changed the standard to be more in line with D.C. Court of appeal decisions to a standard that is referred to as “contract coverage.” The NLRB found in MV that the totality of the agreement should be looked at rather than the hyper technical unmistakable waiver theory.  Accordingly, a management rights clause that gives the employer a right to make work rules should not have to justify a new rule as long the right to create a rule  was  found to be permissible in the management rights clause of a collective bargaining agreement and there was no violation of the law.

The current NLRB General Counsel is seeking a situation whereby she could try to return to the more restrictive Provena standard of “clear and unmistakable.”  That means that unilateral actions not specifically permitted in the collective bargaining agreement or established through past practice may be deemed in violation of the Act. Needless to say, if the rule reverts to the prior standard, employers’ actions will be under heightened scrutiny.

In both instances referred to above, it will incumbent on management to be mindful of the possible ramifications of its actions in dealing with employees being disciplined in a non-union setting and broad interpretations of collective bargaining agreements.