Wyatt Employment Law Report


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NLRB Finds Requesting an Employee Not to Talk to Other Employees During an Investigation to be a Violation

By Edwin S. Hopson

In Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (2012), decided July 30, 2012, the NLRB in a 2-1 decision (Members Griffin and Block in the majority, and Member Hayes dissenting), held that an employer representative who was conducting a workplace investigation violated employee Section 7 rights by telling the complaining employee not to discuss the matter with other employees while the investigation was pending.

The NLRB administrative law judge hearing the case stated in his decision:

“During the hearing, General Counsel amended the complaint to allege that Respondent’s confidentiality agreement and interview of complainant form violates Section 8(a)(1) of the Act. The interview of complainant form is not given to employees. During interviews of employees making a complaint, [employer representative] Odell asks employees not to discuss the matter with their coworkers while the investigation is ongoing. I find that suggestion is for the purpose of protecting the integrity of the investigation. It is analogous to the sequestration rule so that employees give their own version of the facts and not what they heard another state. I find that Respondent has a legitimate business reason for making this suggestion. Accordingly, I find no violation.” 

The Board panel majority reversed the ALJ and nevertheless found a violation.  In dissent, Member Hayes stated:

“Contrary to my colleagues, I would affirm the judge’s dismissal of the allegation that the Respondent promulgated an unlawful work rule prohibiting employees from discussing matters related to an ongoing investigation. It is axiomatic that, to violate the Act, an employer’s work rule must be an actual work rule with binding effect on employees.  [Citation omitted].  Here, … the Respondent did not promulgate any rule at all. It merely suggested that employees not discuss matters under investigation. I therefore respectfully dissent.”

It would appear that the Obama Board is now reaching into areas previously thought to be safe ground by HR managers.  Whether the courts will enforce such decisions remains to be seen.


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NLRB Requests Additional Briefing in Case Involving University Faculty

By George J. Miller

On May 22, 2012, in long standing case involving Park Point University in Pittsburgh, a three member majority of the National Labor Relations Board issued an invitation for briefs from interested parties on the question of whether private university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or, instead, are managers who are excluded from the Act’s coverage.  Specifically, the NLRB is requesting briefs on eight questions, including which factors previously identified by the U.S. Supreme Court as indicia of managerial authority of faculty members are “most significant in making a finding of managerial status for university faculty members and why,” and whether “the factors employed by the Board in determining the status of university faculty members properly distinguish between indicia of managerial status and indicia of professional status under the Act?”

The two Republican members of the Board, Members Hayes and Flynn, objected to the issuance of this request, pointing out that the case has been pending before the Board in its current posture for almost five years, and various organizations representing “virtually all institutions of higher education” in the country have already filed amicus briefs in the case. They also pointed out that during the long pendency of this case, no other organizations have asked to participate in the case, and there is no legitimate reason to further delay the case.

Although the factors relevant to the managerial authority of university faculty were first enunciated by the U.S. Supreme Court over 30 years ago in a 1980 case involving Yeshiva University, and the Board has since been ordered by the courts to determine in each case “which factors were significant and which less so, and why” the Board has yet to make that determination in this case.  This is astonishing considering that the case was first filed in 2003.

This request for briefs at this time appears to be for the purpose of soliciting more input from organized labor on this issue and to engage in a sort of back door rulemaking on the issue of faculty organizing.  Although the U.S. Supreme Court made clear in the Yeshiva University case that each university is different, and the Board must make a decision in each and every case based upon the facts of that case, it appears that the Board intends to use its current three Democrat majority to create a precedent about which managerial factors are more important, and which are less important, in all cases.  It will be no surprise if the Board ultimately narrows the managerial exception and makes it easier for faculty to organize in future cases.


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U.S. Chamber of Commerce Challenges Legality of NLRB Recess Appointments

By Edwin S. Hopson

On March 15, 2012, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (CDW) filed a motion to intervene with the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. National Labor Relations Board, Case No. 12-1115, an appeal by Noel Canning of an unfair labor practice decision by the Board issued February 8, 2012 by Members Block, Flynn and Hayes.  The Chamber and CDW seek to challenge the authority of the National Labor Relations Board to adjudicate charges absent a proper three-member quorum.  It claims that the President’s recess appointments of Sharon Block, Terence F. Flynn, and Richard Griffin to the NLRB in January 2012, unlawfully circumvented the U.S. Senate’s constitutional power to provide advice and consent to the appointment of executive branch officers. According to the motion to intervene, the three recess appointments to the Board were not legally effective because the President made them when the Senate was in actually session, not in recess. Since at that time there were only two confirmed Members of the five-Member Board, the Chamber and CDW contend, that there was lacking a legal quorum as required by the Supreme Court’s New Process Steel decision.  Therefore, the Board had no authority to issue its decision involving Noel Canning, according to the Chamber and CDW.