It is a common practice in labor relations for the union to bear the responsibility of printing the final collective bargaining agreement, which is then distributed to all bargaining unit employees. Many unions print language notifying employees of their right to have a union representative present during any interview that may result in discipline – known as “Weingarten” rights – on the back cover of the printed collective bargaining agreements. Pursuant to a recent National Labor Relations Board decision, such action by a union, absent an agreement with the employer, violates the National Labor Relations Act.

Henry Mayo Newhall Memorial Hospital filed an unfair labor practice charge against the California Nurses Association (CNA), which is part of the National Nurses United, the largest nurses’ union in the country, after the CNA unilaterally included Weingarten language on the back cover of the parties’ 2009 CBA. The hospital objected that this issue was never discussed during negotiations and that the hospital never agreed to include the language in the CBA. In fact, in 2003 the hospital filed a ULP charge against the CNA over this same issue, which was resolved when the CNA agreed to reprint the 2003 CBA with a blank cover.

This time, however, the CNA refused to reprint the CBA and the matter was heard by an Administrative Law Judge. In the underlying proceedings, the General Counsel argued that the CNA’s statement that employees “must request that a CNA rep be called into the meeting” infringed on an employees’ Section 7 right to decline such representation. The ALJ agreed that the statement was a violation of employees’ Section 7 rights and found that the CNA violated the agreement by including the statement on the cover of the CBA. The ALJ also held that by printing the Weingarten rights on the CBA, the CNA unilaterally modified the terms of the parties’ agreement in violation of the Act.

The CNA appealed to the Board. The Board rejected the ALJ’s finding that employees’ Section 7 rights were violated by the representation statement, holding that when read in context of the rest of the Weingarten rights, employees would not reasonably understand the statement to restrain their right to decline representation. The Board, however, agreed with the ALJ’s finding that the CNA violated the Act by unilaterally including the Weingarten rights on the back cover of the CBA.

In light of this decision, employers that have never allowed unions to include Weingarten or other statutory rights on the cover of a collective bargaining agreement should object to any unilateral attempt to do so by the union in the future. Employers who have allowed such language in prior collective bargaining agreements should consult with labor counsel about the decision’s impact, if any, on their existing practice.