Monday, October 19, 2015

NLRB-At it Again!

October 2015
By Walter J. Liszka, Esq.

Since the “packing of the NLRB” by President Obama, long established precedents of the National Labor Relations Board have been falling like flies as President Obama’s union protection agenda runs full force (joint employer standards; representation issues; etc.). There is no doubt in the author’s mind that President Obama deserves his union card!!

In a recent decision issued by the NLRB (June 26, 2015) in the case of American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers-West, 32 NLRB No. 139 (32-CA-063475) the Board has rent asunder a thirty-eight (38) year precedent that established a bright line rule that allowed employers not to provide to a union copies of witness statements taken by an employer during an investigation regarding employee workplace misconduct. The Democratic NLRB has seen fit to invalidate this bright line standard established in Anheuser-Busch Inc., 237 NLRB 982 (1978) and replace it with a “balancing test” that would balance the needs of the union for the alleged requested information (actual employee statements) against any “legitimate and substantial confidentiality interests” established by the involved employer. Based on the overly “pro union bent” of the NLRB, how many cases will find “legitimate and substantial confidentiality interest” in favor of an Employer? In the opinion of the author, not very many!!

It is indeed interesting to note that this decision in June 2015 is, in reality, the second decision of the NLRB in this case. In point of fact, the exact same decision was made by the “Obama packed NLRB” in December of 2012 that was later overturned by the United States Supreme Court in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) which held that this decision, as well as approximately three hundred (300) other NLRB decisions, were illegal predicated on the fact that certain Obama appointments to the NLRB were unconstitutional. Unfortunately, in this case, the time from 2012 to 2015 has not been a sufficient time passage to allow the “Obama NLRB” to come to a better decision.

What this decision basically means is that it is going to be difficult, if not impossible, for an employer to investigate workplace misconduct and procure from its employees information and written statements detailing what they observed. The employer will not be able to promise “confidentiality of the statement” to any employee! Which employee, in his/her right mind, would present a statement identifying workplace misconduct by another employee if, in fact, that statement must be given to the union for their review? Again, the NLRB’s lack of business sense comes to the fore.

Simply stated, this decision goes a long way of making a thorough employer investigation of work place misconduct (think sexual harassment or intentional destruction of product) impossible!

Questions? Contact Walter J. Liszka, Managing Shareholder of the Chicago office of Wessels Sherman at waliszka@wesselssherman.com or (312) 629-9300.