By: Ashley S. Kircher, Esq.
On July 2, the NLRB found that the California Nurses Association, which is part of National Nurses United, the country’s largest union of registered nurses, violated the NLRA when it printed a statement regarding workers’ rights on the back of its collective bargaining agreement with Henry Mayo Newhall Memorial Hospital. See 359 NLRB No. 150. Unfortunately, however, the decision was not as employer-friendly as one might think.
The Long History of the Dispute
The dispute between the parties first arose in 2003, when the union unilaterally printed a Weingarten statement on the back cover of its CBA with the hospital. “Weingarten” is in reference to a 1975 Supreme Court decision that recognized the Section 7 right of an employee to request the presence of a union representative during an investigatory interview that the employee reasonably believes could result in discipline. When the hospital discovered what the union had done, it objected and filed an unfair labor practice charge. In September 2003, the NLRB Division of Advice recommended that a complaint be issued because it believed that the statement violated the law, reasoning that the statement implied that employees were required to request a union representative during investigatory meetings. The hospital later withdrew the charge after the union agreed to reprint the CBA with a blank back cover.
The Union Does it Again
In 2009, the union and the hospital executed a new CBA and once again, the union unilaterally added a Weingarten statement to the back cover. The statement read as follows, in relevant part:
The Weingarten Rights
The Supreme Court has ruled that an employee is entitled to have a . . . 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.
After the union refused to reprint the CBA, the hospital filed another unfair labor practice charge in October 2010, and Region 31 of the NLRB issued a complaint in April 2011. The case was tried before an NLRB administrative law judge in April 2012.
The ALJ Decision
The ALJ found that the statement on the CBA itself violated the Act, reasoning that it was ambiguous and could reasonably be read by bargaining unit employees to require them to request that a union representative be called into a disciplinary interview and that the statement therefore had a tendency to chill employees’ exercise of their Section 7 right to not have a union representative present during such an interview. The ALJ also found that by unilaterally including the statement, the union had violated its duty to bargain in good faith.
The Board Decision
The Board disagreed with the ALJ that the statement itself violated the Act. In reaching this conclusion, the Board reasoned that when read as a whole, the statement was not ambiguous and would simply be read by employees to mean that if they wanted to have a union representative present, then they must ask for one, not that they were required to ask for one.
The Board did agree with the ALJ that the union had violated its duty to bargain in good faith, but only because the union’s printing of the statement was contrary to the settled understanding of the parties on the issue. The Board therefore ordered the union, at its sole expense, to reprint and deliver to the hospital copies of the CBA without the statement.
At bottom, the Board’s decision is not particularly heartening for employers. The main takeaway is that when unions print collective bargaining agreements for distribution to employees, employers should pay careful attention to make sure that no new language has made its way into the agreement. And even then, getting the language removed may prove to be an uphill battle.