On July 2, 2013, the panel (Board) representing the NLRB's judicial functions issued an opinion in California Nurses Ass'n (Henry Mayo Newhall Memorial Hospital) holding a union committed an unfair labor practice (ULP) in violation of Section 8(b)(3) of the NLRA by unilaterally adding a statement of employees' rights under NLRB v. J. Weingarten, Inc. to the back cover of a printed collective bargaining agreement (CBA) after the terms of the CBA were negotiated.

The employer and the union executed a 3-year CBA in 2003. When the union printed copies of the CBA, as the CBA required, it added a statement of employees' Weingarten rights to the back cover, noting employees have the right to have a union representative present in an investigatory interview the employee reasonably believes may result in discipline. After the employer filed ULP charges, the union agreed to reprint the CBA with a blank back cover. However, in 2009, the union again printed the newly executed 3-year CBA with a Weingarten rights statement on the back cover. The employer filed ULP charges, claiming the union violated Section 8(b)(1)(A) and (3) of the NLRA. An NLRB administrative law judge (ALJ) found the union committed ULPs by:

The Board rejected the ALJ's finding that the union violated Section 8(b)(1)(A), holding that, read in context of the broader Weingarten statement, the challenged phrase was not ambiguous and could not reasonably be read to command employees to request a union representative's presence. However, the Board adopted the ALJ's finding that the union violated Section 8(b)(3) because it unilaterally modified the contractual disciplinary procedure by adding the Weingarten rights statement to the CBA's back cover. The Board agreed that this was contrary to the parties' settled understanding on the issue of the CBA's cover text, because the employer had previously objected to adding similar language to the 2003 CBA cover.

In light of this decision, employers should be aware that the content of a CBA's cover is a mandatory subject of bargaining. In situations where a union prints the CBA after it is negotiated, employers should ensure that the printed CBA, including its covers, does not include extra content that the parties never agreed to include. Employers charged with ULPs for arguably ambiguous policy or employee handbook language suggesting that employees must follow a course of action should consider citing this decision, which:

For more information on Weingarten rights, see Practice Note, Investigative Interviews in a Unionized Workplace: Weingarten Rights.