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Vedder Thinking | Articles The NLRB Unwraps Several Post-Election Surprises for Employers


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As the New Year opens, employers should be aware of a series of National Labor Relations Board decisions in major cases that will impact both union and nonunion operations. Many have speculated that the NLRB held off on making several of these decisions until after the fall elections. The Board was also concerned about getting some of these out before the expiration of the term of Member Hayes at the end of the year. For those who are keeping count, Member Hayes was the last Republican on the NLRB, and as many of these decisions show, he was a more employer-friendly voice than others on the Board.

The NLRB Continues to Protect Employees from Discipline Related to Their Use of Social Media

In Hispanic United Buffalo Inc., 359 NLRB No. 37 (Dec. 14, 2012), the NLRB by a three-to-one vote (with Member Hayes dissenting) reaffirmed and expanded its commitment to protect employee use of social media to discuss issues related in any way to the workplace. It held that federal labor law allows employees not only to criticize their employer or discuss union organizing on social media accounts, but to criticize their coworkers as well. Hispanic United is a charitable organization that provides social services to disadvantaged clients. It discharged five employees for statements made on a Facebook account that sharply and in some cases profanely criticized a coworker who had suggested in a separate private conversation that some of Hispanic United's employees were not doing enough to serve the group's clients. The Board found that the online conversation was protected, concerted activity. Although none of the employees was under investigation at the time or asked Hispanic United to take or not take any action (the most common situations in which federal labor law protections arise), the NLRB reasoned that the postings could have had an "object of preparing" for "group action" by the employees to defend themselves from criticism. The Board rejected claims that the comments constituted harassment or bullying and should be unprotected for that reason as well, finding that the Board would apply its own standards and would not simply rely on what it characterized as the "subjective" opinion of the harassed coworker. The Board's decision leaves no doubt that employers will continue to find it difficult to discipline employees for using social media to discuss work-related issues no matter how tangentially related to a work-related complaint.

Represented Employers Must Now Disclose Witness Statements Taken During Most Investigations to Labor Unions

In Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012), a three-to-one divided Board (again, with Member Hayes dissenting) overruled a decades-old precedent and held that unionized employers must, upon the request of a union, begin turning over witness statements taken during workplace investigations, even if the witness was promised confidentiality to obtain his or her cooperation. The Board had previously held that such statements need not be turned over in most cases because of the risk that such a disclosure would chill witness cooperation. Although the NLRB claimed that it will still examine whether confidentiality may be required on a case-by-case basis, the Board made clear that there is a presumption that such statements must be produced. To overcome that presumption, an employer must be able to show on the particular facts of each case that there is something unique about the matter under investigation, or the risk of witness tampering exists, in order to overcome this presumption. Even where that exacting test can be met, the Board held that an employer may no longer simply refuse to produce witness statements. It must now raise its concerns promptly and negotiate alternatives for satisfying them short of withholding the statements. The new test creates a great deal of uncertainty for employers who want to assert confidentiality. But routinely turning over all such statements could chill cooperation, particularly from coworkers in the union who will fear harassment in the workplace.

Represented Employers Must Deduct Union Dues Even after Contracts Expire

In another three-to-one vote (again, with Member Hayes dissenting), the Board in WKYC-TV, Gannet Co., 359 NLRB No. 30 (Dec. 12, 2012), found that employers could no longer stop deducting union dues from employee paychecks after the expiration of a collective bargaining agreement. As a result, for the first time in 50 years since this issue was first decided, employers will have to act as bill collectors to fund unions during negotiations. The only way out of this dilemma is for employees individually to cancel their dues deductions (which rarely happens) or for employers to begin proposing to abolish dues deductions in negotiations so that they can implement that proposal if negotiations reach a valid legal impasse. The decision takes away the leverage employers had to pressure unions into reaching new contracts promptly. If there is any good news in this decision, the Board did acknowledge that unions cannot compel employers to fire employees under a union security clause if employees cancel their dues deductions individually following a contract's expiration. That sometimes occurs when unions call for strikes or take other actions with which employees disagree. That protection is written into the statute and cannot be reversed without going through Congress.

Newly Represented Employers Must Bargain before Discharging or Issuing Other Significant Discipline to Employees

In Alan Ritchey Inc., 359 NLRB No. 40 (Dec. 14, 2012), a three-member panel of the NLRB concluded that employers who do not have a contractual grievance procedure in place must bargain with unions representing their employees before issuing "discretionary" discipline involving suspensions, demotions, discharges, or other significant sanctions. The Board suggested that any degree of "discretionary" will trigger a bargaining obligation. For example, discipline becomes discretionary if an employer has sometimes departed from its policy because of mistakes or based on unusual facts (even when unusual facts are not present in the situation at issue). Having a handbook or policy provision that reserves the right to impose greater or lesser discipline based on individual facts and circumstances is likely to be considered "discretionary." For lesser sanctions, such as verbal and written warnings, employers need not bargain in advance, but they will continue to have an obligation to bargain after the fact as they do now. Although the NLRB claimed the negotiation process need not be burdensome or lead to unreasonable delays, the NLRB appears to have ignored the reality of how these new rules can be abused. The procedures that the NLRB laid out not only contemplate notice and a change to discuss the issue, but they also would require the employer to respond to information requests, hold meetings, and continue to bargain until a legal impasse or agreement is reached. Absent "a serious, imminent danger" to the business or to coworkers, the discipline remains on hold until all of these steps are completed. The bottom line? Issuing serious discipline while negotiating first contracts will now be more burdensome and time consuming than ever.

Employers Must Carefully Draft Mandatory Arbitration Agreements to Avoid any Possible Reading that Would Limit Access to the NLRB

Finally, the Board released a decision examining the interaction between employer-crafted arbitration programs and the NLRA. In Supply Technologies, LLC., it decided by a two-to-one vote (Member Hayes dissenting) that an employer's mandatory arbitration program for workplace disputes must very clearly carve out the right of employees to file NLRB charges. In that case, the employer required employees to sign a document agreeing to resolve claims related to work disputes through an employer-sponsored arbitration process. Although there was language in the plan reserving the right of employees to file charges with governmental agencies, the Board found the plan to be unlawful because the language did not expressly mention the right to file charges with the National Labor Relations Board and was not featured as prominently as the NLRB would have liked. Employers who have mandatory arbitration programs or are contemplating their use should carefully review this decision and their programs to make certain the language of their plans meets the NLRB's exacting tests.

If you have questions about any of these decisions or federal labor law in general, please contact Kenneth Sparks at +1 (312) 609 7877, or Kevin Hennessy at +1 (312) 609 7868, or any other Vedder Price attorney with whom you have worked.


Kenneth F. Sparks