Pittsburgh Business Times reports: “NLRB reverses disciplinary ruling: Frees employers to investigate problems without third party” (by Lynne Glover)
When it comes to disciplining workers, employers have just been given a little more latitude thanks to a National Labor Relations Board ruling issued this month.
Nonunion workers are no longer entitled to have a co-worker accompany them to meetings related to the matter that are held by their employer. This reverses an NLRB decision made four years ago in a case involving the Epilepsy Foundation of northeast Ohio. . .
The NLRB ruling received attention at a recent meeting of the Pittsburgh Human Resources Association. According to several sources who did not want to be identified, the ruling may not have a significant impact on employers because many may not have even been aware of the NLRB decision made in 2000.
In its latest ruling, NLRB noted the increasing number of investigations because of new security concerns and complaints of workplace discrimination and sexual harassment. . .
“There will be a lot more random discharges and discipline on workers where discipline isn’t justified,” claimed Bill George, president of the Pennsylvania AFL-CIO . . .Mr. George said that the ruling could have a positive result for the union movement. “It may cause us to get an increase in unionizing,” said Mr. George. Read more
The NLRB’s press release is here.
The full text of the decision is here.
Those interested in how the Board’s rulings sway with the political winds can trace the absurb series of reversals in this opinion, from Materials Research Corp., 262 NLRB 1010 (1982), holding that “the Weingarten right encompasses the right of an employee to request the presence of a coworker in a nonunionized setting,” to Sears, Roebuck & Co., 274 NLRB 230 (1985), in which “the Board abandoned that position . . . , finding instead that Weingarten rights do not apply in the absence of a certified or recognized union,” to E. I. DuPont & Co., 289 NLRB 627 (1988), in which “the Sears rationale [but not result] was modified,” to Epilepsy Foundation, 331 NLRB at 676 (2000), reversing DuPont, to the current IBM case, reversing Epilepsy Foundation.
So the answer to that legal question (one of some considerable importance) is . . . yes . . . no . . . no for a different reason . . . yes, and . . . (er . . . we changed our mind again) . . . no.
Now is that perfectly clear and predictable as a basis for guiding employer behavior? Could you blame your lawyer for failing to predict which way the wind was about to blow?
The Board has been generally successful in administering a relatively short statute through the “common law” method of issuing rulings on particular cases to serve as precedent, rather than issuing vlumes of regulations, but this method requires more consistency in order to be effective.
And reading the IBM rationale, I’m not sure why Union employees should have the right to representation any more. The only rationale distinguishing the situations seems to be “Coworkers do not have the same skills as a union representative.” I question whether that outweighs all the other reasons for keeping investigatory interviews private, reasons shared by all employers.
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