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The changing face of labor issues

published in Oklahoma Employment Law Letter | March 1, 2013

By Tony Puckett

In January, employers concerned with recent expansive rulings by the National Labor Relations Board (NLRB) gained hope when the D.C. Circuit ruled in Noel Canning Div. v. NLRB that three of President Barack Obama’s recess appointments to the NLRB were invalid, leaving the five-member Board without a quorum.

The three members were appointed on January 4, 2012, purportedly under the Recess Appointments Clause of the U.S. Constitution. However, the court found that Congress was in session because it hadn’t recessed from the first session of the 112th Congress. Instead, it continued to meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012, and actually acted on January 3 to convene the second session of the 112th Congress.

Rulings may get a second look

These issues undoubtedly will make it to the U.S. Supreme Court. In the interim, NLRB regional offices continue to investigate unfair labor practice (ULP) charges, file complaints against employers, and hold union representation elections. The Board also intends to continue hearing cases.

The Noel Canning decision could mean that a year’s worth of NLRB decisions will be invalid. One decision issued in December 2012 overturned 30 years of precedent protecting the confidentiality of witness statements requested by employers during workplace investigations. Under previous case law, employers weren’t required to produce witness statements to unions in grievances. As a result, witnesses were protected from harassment or retaliation by coworkers or the union. The NLRB ended that rule in the Piedmont Gardens case, 359 NLRB No. 46 (2012).

In that case, the employer, a continuing-care facility, asked two employees for written statements while investigating a coworker accused of sleeping on the job, promising both employees confidentiality. When the coworker was discharged, the union grieved and requested copies of the statements, but the employer refused to produce them.

The NLRB noted an employer’s general obligation to furnish a union with relevant information necessary for the union to determine whether to take a grievance to arbitration. The Board acknowledged its own case law holding that witness statements are confidential and protected from disclosure to a union, but it stated that the case law was “flawed.” The NLRB tossed aside a rule protecting witness confidentiality.

Instead, the Board adopted a balancing test that examines a union’s need for relevant information against “any legitimate and substantial confidentiality interests established by the employer.” Going forward, the NLRB will consider whether statements are “sensitive or confidential” based on the facts of each case. Further, the Board has directed employers to seek “accommodations” from the union if they wish to withhold witness statements.

The consequences for employer investigations could be substantial. Employees may be less willing to participate without a guarantee of confidentiality, and producing witness statements increases the possibility of harassment and retaliation. Additionally, the new rule conflicts with federal antidiscrimination law obligating employers to conduct confidential harassment investigations.

Put this in your pipe and smoke it

Not content with the NLRB’s efforts to expand unions’ role in the modern workplace, one union, the United Food and Commercial Workers (UFCW), has found an untapped source of new union members. The UFCW is now organizing and accepting union dues from marijuana dispensary workers. It claims that 3,000 of its 1.3 million members work in the marijuana industry.

The UFCW’s effort to grow its membership has led it to join forces with marijuana advocates in lobbying for “sensible rules” on medical marijuana dispensaries. Union officials have promised to support bills and elect government officials who support legalizing marijuana.

With only 11.3 percent of workers in the United States unionized, the UFCW’s attraction to marijuana workers and the expanding legalized marijuana business is obvious. But obstacles remain.