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With President George W. Bush’s recess appointment of Ronald E. Meisburg to the National Labor Relations Board, the board moved into 2004 with its full complement of five members. Joining Chairman Robert J. Battista and members Peter C. Schaumber, Wilma B. Liebman and Dennis P. Walsh, Meisburg re-established a Republican majority and the board reversed several major rulings issued during the Clinton administration. This month’s column discusses several of those significant developments relating to: (i) nonunionized workers’ rights to representation at disciplinary interviews; (ii) rights of graduate student assistants to organize and bargain collectively; (iii) inclusion of temporary workers in bargaining units with permanent employees; and (iv) proof that an employer’s threat of plant closure is disseminated throughout a bargaining unit. ‘WEINGARTEN’ RIGHTS In an important decision affecting nonunionized employers, the board ruled by a 3-2 vote in IBM Corp., 341 NLRB No. 148 (2004), that the rights afforded to unionized employees to have a union representative present during an investigatory interview that may lead to discipline — so-called Weingarten rights — do not apply to employees in nonunion workplaces. In so ruling, the board overturned its decision rendered only four years earlier in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), which extended to unrepresented employees a right to have a coworker present during such interviews. The employer in IBM denied the requests of three nonunion employees to have a coworker present during investigatory interviews about allegations of harassment. An administrative law judge, applying Epilepsy Foundation, found that IBM violated �8(a)(1) of the National Labor Relations Act by denying the employees’ requests. Upon review, the board found policy considerations warranted a reversal of Epilepsy Foundation and held that Weingarten rights apply only to unionized employees. In reaching its conclusion, the board emphasized that”[t]he years since the issuance of Weingarten have seen a rise in the need for investigatory interviews, both in response to new statutes governing the workplace and as a response to new security concerns raised by terrorist attacks on our country.” It observed that employers conduct workplace investigations regarding a range of issues, including employment discrimination and harassment, corporate abuse and fiduciary lapses, and real and threatened terrorist attacks. The board further explained that coworkers differ substantially from union representatives in that coworkers do not represent the interests of the entire work force, cannot redress the imbalance of power between employers and employees, do not have the same skills as a union representative and are not subject to a fiduciary duty to protect the confidentiality of information obtained in employee interviews. Thus, the board decided that “on balance, the right of an employee to a coworker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations.” In a dissenting opinion, members Liebman and Walsh argued that the act gives “all workers, union-represented or not,” the right to engage in concerted activities for the purpose of mutual aid or protection. Thus, they said “American workers without unions, the overwhelming majority of employees, are stripped of a right integral to workplace democracy” by the majority’s decision in IBM. GRADUATE ASSISTANTS In another significant reversal, the board in Brown University, 342 NLRB No. 42 (2004), held that students who serve as teaching assistants, research assistants or proctors are not employees within the meaning of �2(3) of the act and therefore do not have the right to organize and bargain collectively. In so holding, the board overruled the Clinton board’s decision in New York University, 332 NLRB 1205 (2000), that such graduate assistants were employees entitled to the act’s protections. NYU had overruled over 25 years of precedent under which graduate assistants had not been regarded as statutory employees. The Brown case arose in the context of an organizing drive by the United Auto Workers, which sought to represent a unit of approximately 450 graduate assistants at Brown University. In reliance on NYU, the regional director concluded that the petitioned-for unit was appropriate and directed an election. An election was held but the ballots were impounded pending Brown University’s request for review. In reversing the regional director and returning to the pre- NYU precedent, the board reasoned that the act is designed to cover economic relationships. It found that graduate assistants “are primarily students and have a primarily educational, not economic, relationship with their university.” In addition, the board explained that allowing students of private universities to organize would have a “deleterious impact on the overall educational decisions” by the university’s faculty and administration and would improperly permit students to wield undue influence on academic issues such as class size and length; graduate assistant hours, responsibilities and stipend amounts; and who, what and where to teach or research. These issues, the board concluded, are “the principle prerogatives of an educational institution.” In dissent, members Liebman and Walsh characterized the majority’s decision as “woefully out of touch with contemporary academic reality.” They also maintained that nothing in �2(3) excludes employees from the act’s protections on the basis that the employment relationship is not their “primary” relationship with their employer. TEMPORARY WORKERS In a case involving temporary workers supplied by a personnel staffing agency, the board in Oakwood Care Center, 343 NLRB No. 76 (2004), ruled 3-2 that employees obtained from a labor supplier cannot be included in a bargaining unit of permanent employees of the user employer to which they are assigned unless both the user employer and the supplier employer consent. Thus, the Oakwood board overruled the controversial ruling of M.B. Sturgis, 331 NLRB 1298 (2000), in which the Clinton board found that bargaining units that combine employees who are solely employed by a user employer and employees who are jointly employed by a user employer and a supplier employer are permissible under the act. The board in Oakwood held that such bargaining units constitute multiemployer units, which require the consent of both employers under �9(b) of the act. Stating that “Sturgis was wrongly decided,” the board reasoned that “the nonconsensual mixing of employees of different employers” violated a basic principle of the act, “that employees be grouped together by common interests and by a common employer.” As a result, the Oakwood board dismissed an election petition filed by the Service Employees International Union. The SEIU was attempting to organize a unit of nursing home employees encompassing both employees solely employed by the Oakwood Care Center and employees jointly employed by Oakwood and a personnel staffing agency. Dissenting, members Liebman and Walsh said the majority “seems to have gone out of its way to make it impossible for joint employees to exercise their � 7 rights [to choose union representation] effectively” and that Sturgis was “necessary to enable the growing number of employees in alternative work arrangements to benefit from collective bargaining.” PLANT CLOSURE THREATS Again reversing precedent, the board in Crown Bolt, Inc., 343 NLRB No. 86 (2004), voted 3-2 that an employer’s threat to close its facility in the event employees vote for union representation will not be presumed disseminated throughout the bargaining unit. This case overrules Spring Industries, Inc., 332 NLRB 40 (2000), which held that plant-closure threats are presumed disseminated throughout the plant absent evidence to the contrary. The board reasoned that the presumption created in Spring Industries “is contrary to the general rule that the burden of proof should rest on the party who seeks to change the present state of affairs.” The board was also concerned that such a presumption would be applied to other kinds of coercive statements and thus would “undermin[e] the general rule that places a heavy burden of proof on the party seeking to set aside the result of a board-supervised election.” Finally, the board stated that it could not “turn a blind eye to the reality” that dissemination of a plant closure threat depends on the circumstances of each case, including how the threat is conveyed, to whom, by whom and the size of the unit. Liebman and Walsh rejected the majority’s decision to overrule Spring Industries, noting that the threat of a plant closure is “so explosive, implying such serious and wide-ranging consequences for the lives of employees and their families, that it will almost certainly be talked about no matter where the threatener stands in the corporate hierarchy or how casually he or she drops it into the conversation.” CONCLUSION The board is expected to continue issuing precedent decisions in 2005 on topics such as: � when an employer’s voluntary recognition of a union based on demonstrated majority status will bar a decertification petition for a reasonable period of time; � the standard for cases in which a union organizer applies for employment with an employer to further union solicitation of employees; and � the status of medical interns and residents as employees; and the standard for employer withdrawal of recognition of an incumbent union. John P. Furfaro is a partner at the firm of Skadden, Arps, Slate, Meagher & Flom and Maury B. Josephson is a principal in the Law Office of Maury B. Josephson. Risa M. Levine, an associate at Skadden Arps, assisted in the preparation of this column. If you are interested in submitting an article to Law.com, please click here for our submission guidelines.

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