Employment Law: Labor board's actions affect union, nonunion employers

Historically, only unionized employers have been concerned with the National Labor Relations Board and its rulings. However, today all employers have to consider the NLRB's interpretations of the National Labor Relations Act, along with other federal and state statutes, in their employment issue analysis.

In 1999 and 2000, the board issued 22 decisions overruling past NLRB precedent, which is the highest number since 1984 when the board, controlled by Re-publicans, issued 18 decisions overruling pro-labor decisions. Some experts opine that the recent reversals are an effort to extend the NLR Act and collective bargaining to the unorganized sector of the work force. Three of those reversals particularly caught management's attention.

First, on July 10, 2000, in Epilepsy Foundation of Northeast Ohio, the board extended the Weingarten right to non-union employees. The Weingarten principle means a union employer violates the NLR Act by denying an employee's request that a union representative be present at any investigatory interview in which the employee reasonably believes disciplinary action might result.

The board held that the statutory language should be interpreted to protect union or nonunion employees alike to prevent the imposition of unjust punishment on that employee. Nonunion em-ployers are concerned with this decision's ramifications as the board's analysis is based on the "just cause" basis found in most collective bargaining agreements, which directly contravenes the employment-at-will doctrine relied upon by most nonunion employers.

Nothing in this decision requires the employer to conduct such an interview or inform the employee of such right.

Therefore, if the employee requests the presence of a coworker, the employer can dispense with the investigatory interview and proceed to issue the discipline. This could pose a very difficult situation, especially if the employer needs to meet with employees to discuss sexual harassment allegations, for example.

Next, M.B. Sturgis Inc. opened the door for the organization of temporary employees. In this 2000 decision, the NLRB agreed that temporary employees have the right to join a collective bargaining unit with regular employees if such workers share a "community of interest"even over the objection of the temporary agency and the employer using the temporary employees.

Previously, both the temporary agency and the "user" employer had to consent before such employees could become a part of the collective bargaining unit. The board now has decided that the use of temporary employees is not like a true multi-employer situation where several employers consent to join forces to bargain with a particular union. The NLRB will decide whether the temporary em-ployees should be included within an appropriate collective bargaining unit re-gardless of either employer's consent.

Finally, in a potentially fertile field for organizing efforts, interns, residents and fellows at health care facilities are beginning to join unions. Such action is based upon the NLRB's rulings in 2000 holding that interns, and other graduate students in like academic settings, are considered statutory employees.

The board did not follow prior decisions which recognized interns and residents from a student-teacher relationship with a hospital rather than from an employer-employee relationship. As a result, the board now considers these positions to be in the nature of apprenticeships and that paid apprentices are usually considered to be statutory employees under the act. Residents are beginning to organize at an increasing rate in several parts of the country.

Similar unionization has spilled over to other aspects of the health care industry as doctors around the country have attempted to organize, too. Closer to home, the Nurses United For Improved Patient Care union, an arm of the National American Federation of Teachers, has successfully organized charge nurses at several of Kansas City's Health Midwest facilities over the last two years. These professionals have successfully argued to the board they are not "supervisors," which would otherwise make them ineligible to join a union.

The board's recent interpretations may not change for a while. Currently, the NLRB has only two members on its five-seat panel; therefore, it is unable to act since it lacks a quorum. Although President Bush nominated two members to the board last fall, no action has been taken due to the political impasse between Democrats and Republicans over the nomination of individuals by President Bush to other posts.

Until then, all employers should pay attention to the implications of the NLR Act and the broadening of its coverage.

(Bob Lawson Jr. practices labor and employment law representing management and is a partner with the law firm of Blackwell Sanders Peper Mar-tin LLP in Springfield.)