Often, after bargaining has ended and the union has ratified the successor labor contract, the union will print the labor contract in booklet form for distribution to employees. Sometimes the union will add content to the contract booklet that was not discussed at the bargaining table. Some added information, union contact information or a list of the International Officers, is probably irrelevant, but some information may add to or modify the terms of the contract. Recently, an NLRB Administrative Law Judge (“ALJ”) considered a case involving the latter situation, and the ALJ’s decision should serve as a reminder to employers that they need to remain vigilant and be prepared to take action to keep the union honest.
In the California Nurses Association (“Henry Mayo Newhall Mem. Hosp.”) decision, issued July 9, 2012, the ALJ found that the California Nurses Association (the “CNA”) violated the National Labor Relations Act (the “Act”) when it unilaterally added a message on the back of the labor contract booklets it distributed to employees. The added text purported to outlined the employees’ right to CNA representation during investigatory meetings. In relevant part, text inserted by the CNA 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.
The language was not bargained by the parties during negotiation of the new labor contract, and the employer previously opposed inclusion of identical language on the back cover of the labor contract booklet following the parties’ 2003 negotiations.
The ALJ found that the CNA violated its duty to bargain under Section 8(b)(3) of the Act by unilaterally modifying the terms of the labor contract, which provided that employees could resolve difference with their employer “with or without the presence” of the union. In addition, the ALJ concluded that the language of the provision inserted by the CNA violated Section 8(b)(1)(A) of the Act. According to the ALJ, the CNA’s admonition that employees “must request” the presence of a union representative at an investigatory meeting is overbroad and inconsistent with the employees’ right not to request union representation at such a meeting. By implying that there is in fact no choice but to ask for representation, the CNA’s language impermissibly chills employees in the exercise of their Section 7 rights.
Takeaways: Even though bargaining may be over and the settlement ratified, employers must nonetheless keep their eyes on the ball to avoid the kind of end-run attempted by the CNA in the Henry Mayo Newhall Mem. Hosp. case. Employers should take the lead in preparing the final version of the new labor contract, and should insist upon reviewing the form of the labor contract booklet the union intends to distribute to employees. Where additional text has been added by the union, the employer should note the addition and write to the union to object to the added text or confirm that it is not part of the labor contract. If the union refuses to respond to the employer’s request in an appropriate manner, the employer will have six months to file an unfair labor practice charge with the local NLRB Regional Office. The failure by an employer to object may be deemed by an arbitrator or the NLRB to be a waiver by the employer of its right to object to inclusion of the language.