Over the past several years, December holiday cheer has meant more than just Santa Claus climbing down the chimney to deliver presents in the homes of union supporters. It has also meant that it’s time for the National Labor Relations Board (NLRB) to issue union-friendly decisions prior to the expiration of a Board member’s term.
2012 has proved to be especially good one for organized labor. In a series of rulings coinciding with the end of Board member Brian Hayes’s term, the NLRB issued several decisions that change long-standing rules in a way that favors labor. In perhaps the most significant decision, WKYC-TV Inc., 359 NLRB No. 30 (12/12/12), the Board overruled 50 years of precedent and held that a dues check off clause remains in effect after a collective bargaining agreement expires. This is a fairly radical change, as it will allow labor unions to continue to have employers collect union dues from employee paychecks, even after the collective bargaining agreement expires. Under prior law which had been in effect since 1962, the dues check off did not survive the expiration of the collective bargaining agreement, meaning that an employer could terminate the dues check off to put financial pressure on the union to reach an agreement.
In Alan Ritchey, Inc., 359 NLRB No. 40 (12/14/12), the Board held that a newly unionized employer cannot unilaterally impose significant discipline (such as a suspension or termination) on employees, even if there is not yet a collective bargaining agreement in place. At a minimum, an employer must give the union notice and an opportunity to discuss the discipline before taking action. It is not clear if the employer also must provide the union with information, such as records of other disciplinary actions or a written explanation of the basis for the discipline.
In Piedmont Gardens, 359 NLRB No. 46 (12/15/12), the Board reversed 34 years of precedent to hold that a witness statement obtained by an employer during an investigation of employee misconduct must be produced to the union. The Board rejected a bright line rule established in 1978 (holding that witness statements need not be disclosed), replacing it with a balancing test that weighs the union’s need for the information with the employer’s interested in protecting confidentiality. One day earlier, in Hawaii Tribune-Herald, 359 NLRB No. 39 (12/14/12), the Board held that a witness statement prepared by an attorney is not subject to the attorney-client privilege and must be produced to the union, absent an assurance of confidentiality.
Finally, in Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (12/20/12), the Board did not overrule precedent, but did make clear that it considers social networking to be “protected concerted activity” under the National Labor Relations Act. By age 3 to 1 vote, the Board held that an employer violated the NLRA by firing five employees who responded to a coworker’s criticism of their work performance by discussing the criticism on an employee’s personal Facebook page.
With the current NLRB assured to be made up of a Democratic majority at least through the end of President Obama second term, it is safe to assume that we will see more of these year-end rulings that favor labor. Employers will need to treat this phenomenon like the ball dropping on Times Square on New Years Eve-just another rite of passage this signals the end of one year and the dawn of another.