Happy Holidays from the NLRB: Lumps of Coal for Employer Stockings

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In a flurry of year-end activity, the National Labor Relations Board (NLRB or the Board) has issued a number of significant decisions. The following is excerpted from the NLRB’s press release issued on December 21. 
The decisions touch on a variety of issues including social media postings, charter school jurisdiction, back pay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract. 
Hispanics United of Buffalo – The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.
Alan Ritchey, Inc. – In a unanimous decision, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.
Latino Express – In a decision that will affect most cases in which back pay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the back pay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.
Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.
United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.
WKYC-TV, Gannet Co. – Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented. This decision overturns 50 years of Board precedent, and eliminates another arrow from an employer’s economic weapon quiver that really catches a union’s attention, depriving it of money.
Looks like 2013 is going to be interesting. For further questions or updates concerning NLRB developments, please contact Bill Trumpeter or any member of our Labor & Employment Law Practice Group.

 

Topics:  Collective Bargaining, Dues Checkoff, Facebook, Hispanics United of Buffalo, NLRA, NLRB, Protected Concerted Activity, Union Dues, Unions

Published In: Administrative Agency Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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