Recently, the Board made significant changes in two other areas of Board law that will significantly impact non-union employers. In Epilepsy Foundation of N.E. Ohio, 331 N.L.R.B. 92 (2000), the Board reversed twelve years of Board precedent and held that the National Labor Relations Act's ("Act") protections giving unionized employees the right to have a representative present during a disciplinary interview would be extended to employees in nonunion settings. In M.B. Sturgis, Inc., 331 N.L.R.B. No. 173 (2000), the Board overruled ten years of established law and held that both temporary workers, supplied by a "temp" agency to a "user" employer, and regular workers of the "user" employer could be combined in the same unit for purposes of collective bargaining without first getting the permission of the user employer and temporary agency if the temporary and user employers qualify as joint employers. Each of these decisions reflects a significant extension of a substantive area of the Act that is likely to have far-reaching effects.
Epilepsy Foundation involved what is commonly referred to as "Weingarten rights." In N.L.R.B. v. J. Weingarten,1 the United States Supreme Court held that employees in unionized workforces are entitled to representation during an investigatory interview that the employee reasonably believes could result in disciplinary action. Prior to Epilepsy Foundation, employees in nonunionized settings were not afforded Weingarten rights according to Board precedent.2
The relevant facts of Epilepsy Foundation involved two employees who had written a memorandum critical of their supervisor. When one of those employees was summoned to a meeting with the executive director of the foundation and the supervisor who had been criticized, the employee requested that he meet with the executive director alone or, in the alternative, to have the other employee present to support his position. When the executive director refused both requests, the employee refused to attend the meeting. The next day, the employee was discharged for gross insubordination on account of the employee's refusal to participate in the meeting. (The other employee met with his supervision alone but he was discharged within two months for refusing to accept supervision).
The discharged employee filed an unfair labor practice charge with the Board which proceeded to a hearing before an administrative law judge ("ALJ"). Although the ALJ acknowledged the appropriateness of Weingarten rights, he did not find a violation of the Act inasmuch as Board law, on the basis of Dupont, did not allow employees in nonunion settings to have a co-worker present in similar circumstances. However, on the employee's request for review, the Board saw the issue differently.
Overturning Dupont, the Board majority concluded that Dupont was inconsistent with the grounding principle articulated by the Supreme Court in Weingarten, and the purposes of the Act. In Weingarten, the Court had focused on employees' Section 7 rights which permit employees to engage in "concerted activities for the purpose of mutual aid or protection." Focusing on those rights, the Board held that:
(t)his rationale is equally applicable in circumstances where employees are not represented by a union, for in these circumstances the right to have a co-worker present at an investigatory interview also greatly enhances the employees' opportunities to act in concert to address their concern 'that the employer does not initiate or continue a practice of imposing punishment unjustly.' Thus, affording Weingarten rights to employees in these circumstances effectuates the policy that '§ 7 rights are enjoyed by all employees and are in no wise dependent on union representation.'
One stark change that occurs when a workforce is organized by a union is that the employer is no longer permitted to deal with its employees individually; it must deal with the employees' union representative to address and resolve the subjects of collective bargaining, including employee discipline. Does Epilepsy Foundation convert a nonunion setting to a union setting and force nonunion employers to deal with employee "representatives" when it is planning to discipline an employee? Not according to the Board. In Epilepsy Foundation, the Board instructs that there is no obligation for an employer to deal with an employee representative of a nonunionized employee in such circumstances. According to the Board, the employer is free to forego the investigatory interview and pursue other means to resolve the matter. Thus, if the investigatory interview was one means of the employer's fact finding, it can forego it and make its decision in the absence of that investigatory interview. What an employer cannot do after Epilepsy Foundation is insist on the interview without employee representation and thereafter retaliate against the employee because of the employee's refusal to participate in the interview alone.
If an employer can simply skip an investigative interview where a nonunionized employee requests representation and proceed otherwise, will Epilepsy Foundation have any real, meaningful impact on the way employers conduct employee relations? Perhaps the most prophetic words as to the real "impact" of Epilepsy Foundation were those of Board Member Peter Hurtgen in his dissent:
(B)y grafting the representational rights of the unionized setting onto the nonunion workplace, employers who are legitimately pursuing investigations of employee conduct will face an unknown trip-wire placed there by the Board. Employers in a nonunion setting will generally be completely unaware of this right to representation that the Board is imposing on them. The workplace has become a garden of litigation and the Board is adding another cause of action to flower therein, but hiding in the weeds.
Perhaps the area in which Epilepsy Foundation could have the most dramatic impact on non-union employers is with respect to sexual harassment investigations. Under both federal and state anti-discrimination law, an employer, when presented with allegations of sexual harassment, is obligated to conduct a prompt and confidential investigation. Invariably, the investigation will include an interview of the accused or another individual which could reasonably result in disciplinary action. If an interviewee insists on the presence of a representative, will promptness or confidentiality be compromised? Can the employer forego the interview and still satisfy its obligation to adequately address the allegations of sexual harassment? These are difficult questions which employers will have to address and resolve on a case-by-case basis.
While Epilepsy Foundation is likely to confound some employer investigations or lead some unsuspecting, nonunion employers to commit unfair labor practices unwittingly while investigating employee conduct, Sturgis will undoubtedly have more dramatic implications for union organizing and collective bargaining in an economy in which nonunion employers rely more and more on temporary workers to operate their businesses.3 The facts in Sturgis and a companion case, Jeffcoat Division, American Commercial Marine Service Company, involved organizing efforts of two unions to represent the workforces of two employers which utilized temporary employees along with their regular employees. In Sturgis, relying on the Board's 1990 decision in Lee Hospital,4 the NLRB region initially approved a bargaining unit of Sturgis' regular employees that excluded temporary employees provided by Interim, Inc., a temporary employment service, even though it found that the temporary employees were jointly employed by Sturgis and Interim. Interestingly, Sturgis wanted the temporary workers included in the unit - the union did not - and when the NLRB region refused to reopen the proceeding to ascertain Interim's consent, Sturgis sought Board review. The Jeffcoat case had a different procedural posture, but there the NLRB region also refused to combine the temporary and regular workers in a single unit because of Lee Hospital. In Jeffcoat, Jeffcoat and the union sought Board review.
On review, the Board held that the regular and temporary employees could be included in a single unit appropriate for collective bargaining. The Board concluded that Lee Hospitalwas wrongly decided because it did not involve multiemployer bargaining.5 Thus, no consent was required or at issue in lLee Hospital and Lee Hospital was expressly overruled by the Board.
In deciding how to address the facts before it, the Board was influenced by changes in the American workplace including the increased use of companies that specialize in supplying "temporary" and "contract" workers to supplement the workforces of traditional employers. In overruling Lee Hospital, and limiting Greenhoot, the Board pointed out that each of those cases was decided before the growth of these alternative employment arrangements. Relying on § 9(b) of the Act, the Board concluded that where an employer-wide unit is involved, the standard is not one based on employer consent but, instead, the unit must be appropriate under the Board's traditional "community of interest" test. Although the Board recognized that not every unit of temporary and regular workers employed by a single "user" employer will always be found appropriate under the community of interest test, it did note that a unit of regular and temporary employees "working side by side at the same facility, under the same supervision, and under common working conditions, is likely to share a sufficient community of interest to constitute an appropriate unit."
It is not entirely clear what impact Sturgis will have on union organizing efforts, in particular, or collective bargaining, in general. Because of the particular but unpredictable impact that inclusion or exclusion of temporary workers in a bargaining unit may have on the outcome of a representation vote, Sturgis may simply create another factor for the parties to consider when making appropriate unit determinations. When it comes to collective bargaining, however, Board member J. Robert Brame, in a lengthy dissent, suggests that a whole host of bargaining and related problems will be ushered in by Sturgis including conflicting interests of employees, conflicting interests of employers and special problems in an accretion context, and it will create implications for secondary activity. Minimally, Sturgis requires non-union employers to carefully consider the implications of using unionized temporary employment services.
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1. 420 U. S. 251 (1975).
2. E. I. DuPont & Co., 289 N.L.R.B. 627 (1988).
3. In unionized settings, employers are not free generally to subcontract their labor needs to temporary employment services without first negotiating that issue with the certified representative of their regular employees. Moreover, labor unions typically oppose any effort by an employer to subcontract out their labor needs other than when limited emergencies are present.
4. 300 N.L.R.B. 947 (1990). In Lee Hospital, the Board had held that a bargaining unit consisting of regular and temporary employees at a single user employer requires the consent of both the user employer and all of the supplier employers involved.
5. In Greenhoot, Inc., 205 N.L.R.B. 250 (1973), the Board held that where two or more user employers obtain workers from the same supplier, a union wishing to represent the temporary and regular workers in a single unit must obtain the consent of all the employers because the unit would be a multiemployer unit.
