During the last few weeks of 2012, the National Labor Relations Board ("Board") issued four very significant decisions, addressing a variety of issues and reversing some long-standing precedent. The cases are briefly summarized below:
1. Dues Check-Off Can No Longer be Unilaterally Terminated at Contract Expiration
Since the Board decided the Bethlehem Steel case in 1962, the Board has held that when a labor contract expires, the employer can unilaterally stop deducting dues that under the check off clause in that contract. This change was one of the very few that an employer could make upon contract expiration without reaching an impasse.
In WKYC-TV, Inc., 359 NLRB No. 30 (2012), however, the Board reversed this long-standing rule, holding that, like most other terms and conditions of employment, an employer’s obligation to deduct union dues and forward such money to the union continues after expiration of a collective-bargaining agreement. In overturning a policy that had existed for 50 years, the Board reasoned that the 1962 Bethlehem Steel decision had failed to properly take into account the legislative history of the Act and the general rule against unilateral changes. Thus, going forward, an employer will be permitted to cease deducting union dues only by agreement with the union or as part of a proposal that is implemented following a lawful impasse.
2. Employers Must Produce Relevant Witness Statements and Bargain Over Any Legitimate Confidentiality Concerns
For over 30 years, the duty to honor a union's requests for information did not encompass the duty to furnish witness statements. See Anheuser-Busch, 237 NLRB 982 (1978). In Piedmont Gardens, 359 NLRB No. 46 (2012), however, the Board formally overruled Anheuser-Busch and held that, going forward, the production of witness statements was subject to the same standard as other union information requests – relevance – and that claims of confidentiality would be addressed by the standard set forth in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), which held that a party asserting confidentiality concerns must present the defense in a prompt manner and must actively seek to find an accommodation by bargaining over the issue with the union and that, if no agreement can be reached, the Board will balance the union's need for the information against any legitimate and substantial confidentiality interests.
This new standard will certainly impact how employers investigate alleged misconduct in unionized workplaces. As the Board suggested in the Anheuser-Busch case years ago, the knowledge that a written statement may be turned over to the union could have a chilling effect on misconduct investigations. Indeed, because the standard is now so subjective, an employer will not be able to guarantee the co-workers who witnessed misconduct that their statements will be confidential. Moreover, as Member Brian Hayes wrote in dissent, the inability to assure confidentiality to a complaining employee violates the intent of the EEOC’s enforcement guidance on sexual harassment investigations.
3. Social Media Protections Expanded
The Board issued another social media-related decision and, in so doing, expanded the type of off-duty conduct that it considers to be “protected concerted activity.”
In Hispanics United of Buffalo, 359 NLRB No. 37 (2012), an employee posted a message on her Facebook page stating that a co-worker felt that other employees were not working hard enough. The author asked other employees how they felt about that. Predictably, the other employees responded with hostility toward the co-worker. When the co-worker saw these comments, she complained to management, who disciplined and terminated the author and four other employees for bullying and harassment. The Board found that the posting and hostile responses were "protected concerted activity" and reversed the terminations. Despite the fact that the author’s posting and the responses expressed nothing about management or terms of employment, the Board found it implicit that the posting was seeking “mutual aid and protection” and, thus, met the standard for protection.
The decision is troubling in that the posting contained no reference to any terms or conditions of employment and did not seek mutual action; it asked only what other employees thought of the co-worker’s opinion. Finding "mutual aid and protection" in such conduct is wholly subjective – putting an employer in the unenviable position of making a decision on discipline when the evidence suggests only personal disagreement with a co-worker.
4. Employers Must Compensate Employees for Any Adverse Tax Consequences of Lump Sum Back Pay Awards
In 1984, the Board ruled that employers were not obligated to provide additional compensation to employees who may suffer adverse tax consequences from a lump sum back pay award. Laborers Local 282 (Austin Co.), 271 NLRB 878 (1984). In Latino Express, 359 NLRB No. 44 (2012), however, the Board overruled Austin Co. and held that when a back pay award covers more than one calendar year, the award must include the amount needed to compensate the employee for any adverse tax consequences the employee will suffer.
The foregoing year-end decisions illustrate the current Board's strong desire to continue expanding unions' and workers' rights, including those of both unionized and union-free workers.