Time Runs Out in NLRB Battle Over Co-Worker Reps

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By Lawrence E. Dubé

Employers may have dodged at least one unpleasant surprise from the National Labor Relations Board this year. The clock has apparently run out on one of the board’s most notorious policy oscillation—or “flip flopping"—contests.

The NLRB has reversed course four times in the last 35 years on the issue of whether an employee at a non-union facility has the right to bring a co-worker into an investigative interview with management.

In its most recent ruling, the NLRB held in 2004 that non-union workers do not have any such right under the National Labor Relations Act.

The board’s position “has bounced back and forth over the years like a slow-moving ping-pong ball,” management attorney James L. Morris, a partner in Rutan & Tucker LLP in Orange County, Calif., told Bloomberg BNA April 13. However, the Democratic majority board didn’t act to restore the right to non-union employees during the Obama years, and now it’s too late, Morris said.

‘Big Deal’ for Employees and Employers Alike

The back-and-forth rulings have been cited by critics as a vivid example of the board’s ability to “flip flop” when the board’s composition changes, Stephanie Dodge Gournis, a partner at Drinker Biddle & Reath LLP in Chicago who represents management, told Bloomberg BNA April 13.

However, the merits of the legal issue are just as important, she said. Where the board lands on the issue is a “big deal” for employees and employers.

Employees view an extension of representation rights into the non-union workplace as a “win-win” option that they could use or not use during an employer investigation, Gournis said. Employees are often disappointed to learn that they don’t have a right under current law to bring a representative to an interview in a non-union setting.

Employers, on the other hand, would be alarmed that giving employees representation rights would add an “administrative layer” to disciplinary procedures and could disrupt one-on-one communications between managers and employees, Gournis said.

Extending representation rights would have been a “natural extension” of the NLRA for President Barack Obama’s Democratic appointees to the NLRB, Gournis said, but they apparently didn’t have the time or the opportunity to act on the issue.

Reach of High Court Ruling Still Unsettled

The debate over employees’ rights to representation in management investigations dates back to the 1970s.

The U.S. Supreme Court held in NLRB v. J. Weingarten, Inc. (1975) that an employee represented by a union has the right to demand the presence of a union representative if management calls the worker into an investigatory interview that the worker reasonably believes may result in disciplinary action.

The Weingarten rule has remained in place for more than four decades, but the high court has never ruled on how it might apply to a non-union workplace.

That task was left to the NLRB, which has repeatedly switched its position.

Board View Flips as White House Changes

The board first addressed the question in Materials Research Corp. in 1982. Even in the absence of a union, the board said, the right of employees under federal law to engage in concerted activity for their mutual aid or protection included the right of the non-union worker to have a representative present during an investigatory interview.

Materials Research only lasted three years. A new board with members appointed by President Ronald Reagan reversed course in Sears, Roebuck & Co. (1985), holding that denying co-worker representation to a nonunion employee was not a violation of the National Labor Relations Act.

But 15 years later, Democrats held a 3-2 majority on the board and the position switched again. In Epilepsy Foundation of Northeast Ohio (2000), the board voted to restore representation rights to non-union workers.

A Republican majority again took over the board by 2004 and issued its own 3-2 ruling in IBM Corp., denying Weingarten rights to employees in the non-union setting.

That decision still stands today.

General Counsel’s Latest Try Stalled

NLRB General Counsel Richard F. Griffin (D) wanted the board to overrule IBM and return to the Materials Research rule. But it appears he has run out of time to make his case.

Griffin, whose term will expire at the end of October, authorized unfair labor practice complaints in two cases that were intended to place the NLRA issue before the board again.

Griffin’s office instructed the NLRB’s Baltimore regional director in December 2015 that the Bayhealth Medical Center case involving a Delaware hospital was “an appropriate vehicle” for urging the board to overrule IBM Corp. and return Weingarten rights to non-union employees.

In a second case, the general counsel in May 2016 instructed the regional director in Phoenix to make the same request to the members of the board in a case against Wal-Mart Stores Inc.

Neither case ever made it to the board. Bayhealth was settled in August 2016, and the case against Wal-Mart Stores ended the same month, when an administrative law judge found that he was bound by the 2004 IBM decision. The Wal-Mart case was not appealed, and the question of Weingarten rights in the non-union workplace didn’t reach the board.

Short on Votes, Out of Time

IBM may be the controlling precedent for some time to come. It does not appear any other cases are currently on the NLRB docket that would allow the board’s current three members to rule on IBM or the issue of co-worker representation.

In addition, if there were such a case available, it’s unlikely the board, which only has three members, would overrule IBM at this time.

For several decades, the board has followed a tradition of not overruling its own precedent unless a majority consisting of three members agrees on such action. The current three-member board would have to be unanimous to overrule IBM, and it is unlikely that the board’s acting chairman, Republican Philip A. Miscimarra, would join Democrats Mark Gaston Pearce and Lauren McFerran in such an action.

President Donald Trump is expected to nominate two Republicans to fill vacancies on the board and will likely reappoint Miscimarra, whose term expires in December. The NLRB could well have a Republican majority for at least four or five years.

Morris said the issue of Weingarten rights in the non-union workplace has been “politically tinged” for years. “Once the new administration makes its own appointments, there’s little chance the Board will overturn IBM” and reinstate representation rights for non-union workers.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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