• NLRB Board Update
  • January 4, 2013 | Author: Kraig B. Long
  • Law Firm: Shawe & Rosenthal LLP - Baltimore Office
  • The National Labor Relations Board issued a flurry of decisions at the end of the year, overturning prior rulings involving (1) Facebook postings, (2) employee discipline, (3) dues checkoff provisions, (4) Beck rights, (5) witness statements, and (6) backpay awards. These decisions dramatically change both union and non-union employer obligations under the National Labor Relations Act and impact the rights of employees as well.

    1. Facebook Postings. The NLRB has released its second “Facebook case” finding that certain Facebook postings constitute protected concerted activity under Section 7. In Hispanics United of Buffalo, an employee threatened to report several of her co-workers to management who she felt did not provide timely and adequate assistance to the organization’s clients. One “criticized” employee learned of this and took to Facebook, posting the allegation from the co-worker. Thereafter, other employees chimed in criticizing the co-worker, defending their own job performance, and complaining about working conditions, such as work load and staffing issues. The employee who started the Facebook exchange never informed the other employees that the complaining employee was going to raise the matter with management. After being made aware of the Facebook posts, the employer terminated the “criticized employees,” believing that their Facebook comments constituted harassment of the employee who had initiated the complaint.

    The NLRB sided with the “criticized employees,” finding that their discussion was protected concerted activity. The Labor Board held that the activity was protected because the “employees were directly responding to allegations that they were providing substandard service to the Respondent’s clients” and such “criticism” could “negatively impact . . . their employment.” The postings were concerted, the Board held, because the employees were joined in a “common cause” and “taking a first step towards taking group action to defend themselves against the accusation they could reasonably believe . . . was going to [be made] to management.”

    In dissent, Board Member Brian Hayes found that the conduct was not concerted, because the employee who started the discussion on Facebook failed to tell her co-workers that the original employee was going to complain to management, adding that there is a difference between “sharing a common viewpoint and joining in a common cause” and that the employees in question were only “venting to one another in reaction to . . . complaints. This does not constitute concerted activity under the precedent.” The majority, however, rejected this view, instead finding that the employee who started the Facebook conversation had the “object of preparing her coworkers for group action.”

    Protected concerted activity cases are a major enforcement priority for the Labor Board. As a reminder, two or more employees have the right to voice complaints about terms or conditions of employment. A single employee is also protected if the employee acts on the authority of other employees, seeks to initiate or induce group action, or expresses a concern which is a “logical outgrowth” of other concerns expressed by a group. The protections afforded by this doctrine apply to both union and non-union employees.

    2. Employee Discipline. In Alan Ritchey, the Labor Board addressed whether an employer must bargain with a union concerning intended employee discipline, in the period after the union has become the employees’ bargaining agent but before the parties agreed to a first contract. This issue had come up before in a 2002 case, Fresno Bee. There, the Labor Board adopted the rule that an employer has no duty to bargain with a union before imposing discretionary discipline.

    In Alan Ritchey, the Union was elected as the bargaining representative in April. Before the parties agreed to a collective bargaining agreement, the employer continued to issue discipline under its prior progressive disciplinary system. This system afforded the employer considerable discretion in disciplining employees.

    The NLRB rejected and overturned Fresno Bee. The Board found that employee discipline during the period in which the employer and union are bargaining regarding a first contract constitutes a unilateral change in terms and conditions of employment, thus triggering an obligation to first bargain with the Union concerning the discretionary aspect of the discipline. The Labor Board then set out two different obligations depending on the type of discipline that was at issue.

    • For oral and written warnings, the Board held, bargaining may be deferred until after the discipline is imposed.

    • For suspensions, demotions, and discharges, the employer must provide the union with notice and an opportunity to bargain over the discretionary aspects of its decision before proceeding to implement the decision. The employer need not bargain to agreement or impasse, but must continue to bargain with the union after imposing its decision, if agreement or impasse is not reached.

    • If an employer is faced with an “exigent circumstance” - such as an employee who has engaged in unlawful conduct, poses a significant risk of exposing the employer to liability, threatens safety, health, etc., - the employer is still free to “quickly remov[e] an employee from the workplace.” The employer should then “promptly notify the union of its action and the basis for it and bargain after the fact” as well as bargain with the union regarding any subsequent discipline.

    The NLRB found as the discipline pre-dated Fresno Bee, thus the employer could not have relied on this decision. Given that the Board had failed to “speak clearly and directly to the issue,” the NLRB decided that retroactive application of the new rule was inappropriate for the period subsequent to Fresno Bee.

    3. Dues Checkoff. Under a fifty-year old case, Bethlehem Steel, employers were free to discontinue union dues checkoff from employees’ wages under a dues checkoff clause upon the expiration of the collective bargaining agreement. In WKYC-TV, the Labor Board overturned that holding. As a general rule, terms and conditions of employment remain in effect even after the contract expires. Bethlehem Steel had carved out an exception for dues checkoff. Finding that the prior reasoning in that case was “flawed,” the Labor Board held that following contract expiration, an employer must continue to honor a dues-checkoff arrangement established in the contract until the parties reach a new agreement or impasse.

    Given that Bethlehem Steel, like Anheuser-Busch, was a long-standing decision on which many employers had relied, the NLRB decided not to apply its new rule retroactively.

    4. Beck Rights. In 1988, the United States Supreme Court held that employees could not be compelled to financially support the political/lobbying efforts of unions if they objected. Thus, in Beck v. Communication Workers of America, the Court ruled that an employee may object to paying union dues and must only pay their fair share of the direct costs of negotiating and administering a collective-bargaining agreement, the settlement of grievances and disputes, and activities or undertakings that implement or effectuate the duties of the Union as the representative of the employees.

    In Kent Hospital, the NLRB has sought to radically revise the right of so-called Beck objectors. The Labor Board found that lobbying expenditures are chargeable to “objecting employees” “if they are germane to collective bargaining, administration or grievance administration.” The charges can even be assessed for lobbying outside of the employees’ direct bargaining unit if the Union establishes that the charges were reciprocal - i.e., the contributing local reasonably expects other locals to contribute on behalf of it someday.

    Although the Board concluded that the question of whether lobbying expenses meet this test will be a “case by case determination,” it suggested that some lobbying expenses will be “presumptively germane” to bargaining; for example, lobbying for or against minimum wage legislation. Other lobbying concerning “general economic stimulus or broad social and environmental policies” would not carry this presumption, according to the Board. To help flesh out this issue, the Board has invited interested parties to submit responsive briefs before March 5, 2013.

    5. Witness Statements. In American Baptist Homes, two charge nurses and one CNA observed a union employee sleeping on the job. All three were asked to provide written witness statements as part of the investigation. After reviewing the witness statements, management terminated the sleeping employee. The Union grieved the termination and asked for the witness statements in an information request. The employer refused, relying on Anheuser-Busch, 237 NLRB 982 (1978), which held that when an employer obtains a witness statement as part of an investigation and assures the employee that the statement will remain confidential, the statement need not be turned over to the Union.

    The NLRB rejected and overturned its prior ruling in Anheuser-Busch. The new rule is that relevant witness statements must be released to the Union, unless the employer asserts a “legitimate and substantial confidentiality interest.” This interest must “outweigh the requesting party’s need for the information.” The burden is on the party asserting confidentiality to establish that interest. Furthermore, the party asserting such an interest still has a duty to seek an accommodation. Examples of possible “legitimate and substantial confidentiality interests” with witness statements include “the risk that employees or unions will intimidate or harass those who have given statements, or that witnesses will be reluctant to give statements for fear of disclosure.”

    The NLRB decided not to apply its new rule retroactively. As a result, where the employer’s refusal to provide witness statements occurred before December 15, 2012 (the date of the decision), the Labor Board will continue to apply the Anheuser-Busch rule. If the refusal occurred after that date, the new American Baptist Homes rule will govern.

    6. Backpay. In Latino Express, the Labor Board held that when an employer awards lump-sum backpay to an employee, the employer is responsible for reimbursing the employee for any additional federal and state income taxes the employee may owe as a consequence of the lump-sum payment. This usually arises if the lump-sum payment boosts the employees’ income into a higher tax bracket. The Labor Board will also now require employers to submit appropriate documentation to the Social Security Administration so that when backpay is paid, it will be allocated to the appropriate calendar quarters.