[author: Ronald Meisburg]
The National Labor Relations Board’s recent decision in Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (2011) addresses several issues of importance to managers and labor law practitioners alike.
First, the Board held that employees may secretly tape record meetings with their managers that they reasonably believe could result in discipline when (1) the employer has denied the employee the Weingarten right to union representation at the meeting; (2) the employer does not have a rule against taping; and (3) the taping does not violate state or local law.
Second, the Board clarified that unlawfully discharged employees who engage in post-discharge misconduct must be reinstated with backpay unless the employer proves “misconduct so flagrant as to render the employee unfit for further service or a threat to the efficiency of the plant.” This standard is derived from the Board’s 1969 decision in O’Daniel Oldsmobile, Inc., 179 N.L.R.B. 398 . It imposes a heavier burden on employers than the U.S. Supreme Court’s test in Jefferson Standard, which provides a defense to employers who discipline or discharge current employees for disparaging the employer. The Board overruled cases relying on Jefferson Standard in the post-discharge context.
Finally, the Board suggested that it might reconsider its long-standing precedent, articulated in Anheuser-Busch, Inc., 237 N.L.R.B. 982 (1978)), that employers need not provide witness statements, obtained in the course of a disciplinary investigation, to the unions representing their employees. The Board did not decide this issue and asked the parties to submit briefs because, the Board said, “Board precedent does not clearly define the scope of the category of ‘witness statements.’”
There are a few important takeaways from this case: