Washoe Medical Center, (2006)

Extract

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Washoe Medical Center, (2006)

Washoe Medical Center, Inc. and Operating Engineers Local No. 3, International Union of Operating Engineers, AFL–CIO. Cases 32–CA–18511–1, 32–CA–18514–1, 32–CA–18579–1, 32–CA–18611–1, 32–CA–18828–1, and 32–CA–18948–1

September 29, 2006

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On January 9, 2002, Administrative Law Judge Jay R. Pollack issued the attached decision and, on January 15, 2002, an Erratum containing revised Conclusions of Law. The Respondent, the General Counsel, and the Charging Party each filed exceptions and a supporting brief. The Respondent filed an answering brief.[1]

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions only to the extent consistent with this Decision and Order.[3]

There were no exceptions to, and thus we adopt, the judge’s finding that the Respondent violated Section 8(a)(1) by interfering with protected employee solicitation and distribution. As we explain below, we also adopt the judge’s finding that the Respondent violated Section 8(a)(1) by denying union representation to bargaining unit employees at grievance meetings; however, we find it unnecessary to pass on his finding that this conduct also violated Section 8(a)(3). Further, we adopt the judge’s recommended dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) by declaring impasse on April 6, 2001, and implementing its economic proposals. We reverse the judge’s finding that the Respondent violated Section 8(a)(1) by interrogating employees regarding a potential strike, and violated Section 8(a)(5) and (1) by unilaterally discontinuing its pay-for-performance merit pay system for unit employees.

Denial of Representation

We adopt the judge’s finding that the Respondent unlawfully denied union representation to employees Tuttle and Mathew at grievance meetings in November and December 2000. The denial of the right to union representation interfered with employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act.[4]

In its exceptions, the Respondent contests the judge’s finding that the “grievance meetings” were pre-disciplinary investigatory interviews. For the reasons given by the judge, we find no merit in this contention.

Under Weingarten, an employee at a union-represented workplace has a Section 7 right to ask for union representation at an investigatory interview that she “reasonably believes . . . will result in disciplinary action.”[5] If the employer grants the request, the union representative is entitled not only to attend the investigatory interview, but to provide “advice and active assistance” to the employee.[6] Thus, it is well settled that “[t]he union representative cannot be made to sit silently like a mere observer.”[7]

In the present case, it is not disputed that Union Representative Freitas attended the investigatory interviews of employees Tuttle and Mathew at their request. Thus, the employees were entitled to Freitas’ active assistance. The denial of that right violated Section 8(a)(1).

The Respondent asserts that Section 9(a) of the Act grants union representatives solely the right to be present at grievance adjustments, not the right to actively par...

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