NLRB Case Update
November 13, 2000 by Beeson Tayer & Bodine
Employer Must Provide Union With Worker’s Medical Information
The NLRB has ruled that an employer must provide the union with an employee’s medical information when that information is relevant to the processing of a grievance. Roseburg Forest Products Co., 331 NLRB No. 124 (August 9, 2000).
There the employer argued that it awarded a position to a disabled employee over other, more senior employees to comply with the “reasonable accommodation” requirement of the ADA. When the union requested information regarding the employee’s disability to investigate a grievance filed on behalf of the more senior employees, the employer refused claiming that the ADA prevented it from disclosing medical information. The union filed an unfair labor practice charge alleging that the employee’s refusal to provide information violated Section 8(a)(5).
The Board rejected the employer’s privacy argument holding that the union had a right to such information when relevant to a grievance issue. The Board relied on an opinion letter from the EEOC stating that medical information necessary to the reasonable accommodation process may be shared between an employer and a union. Thus, the Board held that the employer’s refusal to provide the requested information constituted a Section 8(a)(5) violation and ordered the parties to bargain over a method to provide the information to the Union while protecting confidentiality. Importantly, the union was obligated to provide safeguards for maintaining confidentiality. The union agreed to limit the information to those with a “need to know” (i.e., high-level union decision-makers, the union’s attorneys, and union medical or vocational consultants).
Weingarten Rights Granted to Non-Union Employees
In July the NLRB reversed its long-standing policy and extended Weingarten rights to workers who are not represented by a union. In NLRB v. Weingarten, the United States Supreme Court upheld the Board’s decision providing that employees are entitled to representation at investigatory interviews when the employee reasonably believes it could result in disciplinary action. Since 1985 the NLRB has limited those rights to employees represented by unions. In Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (July 10, 2000), the Board reversed its policy stating that Weingarten rights are “grounded in the language of Section 7 of the [NLRA], specifically the right to engage in ‘concerted activities for the purpose of mutual aid or protection.’ This rationale is equally applicable in circumstances where employees are not represented by a union . . . [as] ‘Section 7 rights are enjoyed by all employees and are in no wise dependent on union representation.’”
NLRB Makes it Easier to Organize Temps
In August the NLRB overruled its past decisions and made it easier to organize temporary workers. M.B. Sturgis, Inc., 331 NLRB No. 173 (August 25, 2000). Previously the Board had ruled that temps could join union bargaining units at the facilities where they were placed only with the consent of both the temp agency and the company where they worked. However, in M.B. Sturgis, Inc., the Board acknowledged that its policy was incorrect and had resulted in “a growing number of employees who are part of what is commonly described as the ‘contingent work force’ [] being effectively denied representation rights guaranteed them under the NLRA.” Now, the Board stated, where the temps are deemed employed by the temp agency and the company where they work, no consent is necessary. Instead the focus returns to the traditional community of interest test to determine the appropriateness of the unit.
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