By Amanda A. Sonneborn.

On July 9, 2012, NLRB ALJ Mary Miller Cracraft found that the National Nurses United (“NNU”) union violated the NLRA when it unilaterally printed a message on the back of a CBA distributed to employees that purported to explain employees’ right to union representation during investigatory meetings.

Without negotiating with the employer, the Union inserted text on the distributed CBA that stated:

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 request is 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. 

Although the subject of such a notice was not specifically the subject of bargaining, the employer previously notified the NNU that it opposed placement of the language on the CBA.

The ALJ found that the NNU’s action violated the NLRA in two key aspects.  First, she concluded that the language itself violated NLRA Section 8(b)(1)(A), because it implied that employees “must request” the presence of a union representative at an investigatory meeting.  Indeed, while the NLRA guarantees an employee the right not to request union representation at such a meeting, the NNU’s statement implies that there is in fact no choice and such an implication impermissibly chills employees in the exercise of their Section 7 rights. 

Second, the ALJ concluded that the NNU violated its obligations under Section 8(b)(3) to bargain with the employer because a provision in the parties’ CBA provided that employees could resolve differences with the employer “with or without the presence” of the union.  By inserting this statement on the back of the CBA, the NNU impermissibly “modified the disciplinary procedure provided for in the agreement.”

Based on her conclusions regarding the NNU’s unlawful conduct, the ALJ ordered the NNU to refrain from printing the non-negotiated statement on the parties’ CBA and post notices regarding its unlawful acts.