National Labor Relations Board Issues Decisions Important To All Private Sector Employers

by Perkins Coie

In the waning days of 2012, the National Labor Relations Board (NLRB) issued several game-changing decisions that are important to all private sector employers—both union and nonunion.

All Employers

Employee Use of Social Media to Complain About Workplace Matters.  As we have explained before, federal labor law permits employees, even if they are not represented by a union, to use social media to complain about employment issues and disputes.  In a recent case, Hispanics United of Buffalo, Inc., an employee was critical of the work of other employees and told one of them that she was going to talk to management about them.  At home and using her personal computer, the other employee posted a complaint on her Facebook page about the critical employee, said she was fed up with the criticism, and asked what her coworkers thought about it.  Four of her coworkers responded in support, also from home using their own computers.  The critical employee, in turn, complained to management that the five employees were harassing her, and the employer discharged all but one of them for violating the company's "zero tolerance" policy against harassment.  The discharged employees filed unfair labor practice charges with the NLRB.  The NLRB concluded that the employees’ Facebook communications were protected and the discharges were unlawful.  The employer was ordered to offer the discharged employees reinstatement and make them whole for any loss of wages and benefits they suffered.  There was no union activity in the picture.

Alternative Dispute Resolution Programs.  Some employers have adopted mandatory alternative dispute resolution (ADR) programs that require employees to pursue employment claims through a private process, ordinarily leading to binding arbitration, instead of suing in court.  In another recent decision, Supply Technologies, LLC, the NLRB reaffirmed its view that it is illegal for an employer to require all claims to be submitted through the ADR process because it amounts to a waiver of an employee's right to file unfair labor practice charges with the NLRB.  (By the way, the Equal Employment Opportunity Commission (EEOC) shares this view when it comes to EEOC charges.)  One way to avoid that problem would be to expressly except charges filed with governmental agencies.

Employers With Union-Represented Employees

Union Dues Checkoffs Continue After Expiration of the Labor Agreement.  Overturning 50 years of established authority, the NLRB decided in WKYC-TV, Inc. that an employer may not unilaterally discontinue union dues checkoffs when the labor agreement expires.  Instead, a checkoff process will be treated as any other established term or condition of employment that continues unchanged after the agreement expires until the parties either agree on changes or bargain in good faith and reach an impasse regarding a change.

Witness Statements.  Overruling more than 30 years of precedent, the NLRB decided in Piedmont Gardens that when an employer investigates a workplace incident or event and takes written statements from witnesses, upon request it has to give those statements to the union that represents the employees.  The only exception is when the employer can carry the burden under Detroit Edison and show that, due to special circumstances, the statements should be kept confidential.  Also, even if the employer can make such a showing, at the time it refuses to provide the statements, it must affirmatively indicate a willingness to bargain with the union in an effort to reach an accommodation of the parties' respective interests.  Before the Piedmont Gardens decision, if the employer had assured the witnesses that their statements would be kept confidential, all the employer was required to do was to tell the union who the witnesses were so that the union could conduct its own investigation if it wanted to.

Requirement to Bargain Over Individual Disciplinary Decisions.  Under federal labor law, an employer is generally prohibited from making changes in terms or conditions of employment without first notifying the union and giving the union an opportunity to bargain over the proposed change.  This prohibition applies as soon as a union becomes the representative of the employees (usually after an NLRB election or upon voluntary recognition by the employer).  The "status quo" must be maintained until the union agrees to a change or the parties bargain in good faith and reach an impasse.  In earlier cases, the NLRB had held that this rule applies to discretionary wage increases, even when the employer has an established practice of giving periodic wage increases.  In those circumstances, because the amount of individual wage increases is discretionary, the law requires the employer to bargain with the union over the increases before making them.  In a recent case, Alan Ritchey, Inc., the NLRB extended this rule to significant discipline (discharge, suspension and the like) even if the employer has not changed its disciplinary rules and follows its past practice in determining the degree of discipline, because each individual disciplinary decision is based on all the circumstances and is therefore a discretionary decision.  That means that an employer, after deciding that discipline is appropriate in a particular case, must notify the union about the decision before administering the discipline to give the union an opportunity to bargain over it.  However, in a departure from the rules governing other unilateral changes, the employer is not required to bargain to impasse before imposing the discipline so long as it remains willing to discuss the discipline after it is imposed.  In addition, once a collective bargaining agreement is in place that addresses the disciplinary process and establishes a grievance procedure to resolve disputes, apparently the agreed-upon process will control, and the employer will not be required to bargain over individual disciplinary decisions.

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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