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Client Bulletin #490
January 16, 2013

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As 2012 drew to a close, the National Labor Relations Board issued a slew of decisions, some overruling decades of precedent and establishing new rules that employers will need to know as they move forward in the new year. Five of the most significant decisions are summarized below. The first three decisions are potentially relevant to employers with union-represented employees. The last two decisions are potentially relevant to all employers, even those with no union-represented employees.

WKYC-TV, Inc. -- Dues checkoff under a collective bargaining agreement survives contract expiration, absent a clear provision to the contrary. This decision, on which we reported in December, overruled more than 50 years of Board precedent. The longstanding rule was that, absent a clear contractual provision to the contrary, dues checkoff went hand-in-hand with union security and no-strike/no-lockout provisions, all of which expired when the collective bargaining agreement did. Therefore, dues checkoff could be stopped when the CBA expired without the need to bargain to agreement or impasse. Under the Board's new rule, the employer generally will have to bargain before it can lawfully stop checkoff unless the CBA clearly provides that checkoff expires when the CBA does.

Alan Ritchey, Inc. -- When the union and the employer do not have an agreement addressing discipline, the employer must bargain over discretionary aspects of discipline of individual union employees. An employer with a duty to bargain is generally required to maintain the status quo terms and conditions of employment until agreement or impasse is reached. According to the Board majority, the exercise of disciplinary discretion by an employer involves a change of the status quo with respect to the affected employee, and so the employer must bargain. The Board qualified its decision by stating some special rules applicable in bargaining over disciplinary situations. The Board explained that the newly-announced duty to bargain over discipline (1) applies only to disciplinary decisions that have an inevitable and immediate impact on employee tenure, status or earnings, such as suspension, demotion or discharge; and (2) does not apply to warnings, corrective actions, or counselings unless they are a step of progressive discipline under a policy that would lead to more severe discipline (which warnings, corrective actions, and counselings almost always are). Further, the Board limited the initial bargaining obligation to (1) notice to the union and (2) an opportunity to be heard, along with (3) providing relevant information upon request to the union. Before the discipline becomes final the employer must bargain to agreement or impasse. Finally, the Board explained that an employer, when exigent circumstances are presented, may deal with the situation promptly (for example, by suspending an employee pending investigation) and then bargain to agreement or impasse after the fact.

This new rule not only lacks clarity, but it also represents a significant change in the way that the National Labor Relations Act has been applied in the past. The "status quo/no unilateral change" doctrine has been in place for many years, and this is the first time it been applied to individual instances of discipline that do not involve the change of an employer policy or rule. Given that much, if not almost all, employer discipline involves some exercise of discretion, the Board can be expected to find routinely that there was a duty to bargain over discipline. Employers can expect to experience the impact of the new rule primarily (1) after a union is newly elected or recognized as bargaining representative and the employer is negotiating an initial contract; and (2) when a collective bargaining agreement has expired and there is no longer a grievance and arbitration provision in effect. In these situations, employers may be able to negotiate an agreement on an interim grievance and arbitration procedure.

The rule will potentially have the greatest impact on employers who refuse to bargain while they seek judicial review of a Board certification of a union as a representative. Employers in this situation will face a dilemma: On the one hand, they face potential liability for back pay or other remedies if the certification is ultimately upheld. On the other hand, they cannot bargain with a union that is not legally the representative of the affected employees. In other words, employers in this situation will be between a rock and a hard place when it comes to handling disciplinary actions covered by the new Board rule.

American Baptist Homes of the West dba Piedmont Gardens, Inc. -- Witness statements obtained by employers in workplace investigations under promises of confidentiality no longer may be routinely withheld in responding to union requests for information. Overruling more than 30 years of Board precedent, the Board panel ruled that an employer was required to bargain over a union request for such information and that, if no agreement was reached and an unfair labor practice charge was filed by the union under Section 8(a)(5) of the Act, the Board would balance the union's need for the information against the employer's legitimate and substantial confidentiality interests. The decision potentially has significant ramifications for employers conducting investigations in union-represented workforces. With the lack of a bright line rule on witness statements and the inability of the employer to guarantee confidentiality, witnesses may be reluctant to provide statements to employers. Earlier decisions from this Board have already taken a narrow view of when assurances of confidentiality would be warranted and respected at all. Remarkably, the course taken by the Board in Piedmont Gardens is in direct conflict with guidance of the U.S. Equal Employment Opportunity Commission on conducting workplace investigations, as former Board Member Brian Hayes pointed out in his dissent in the case. According to EEOC guidance, confidentiality is a key component of an effective investigation of workplace harassment. In any event, employers with union-represented workforces will want to consider whether written witness statements make sense and whether anything can or should be said to witnesses about union access to any statements that the witnesses may provide.

Hispanics United of Buffalo, Inc. -- "Venting" at a co-worker on Facebook is "protected concerted activity" if related to workplace performance disputes. In this case, which affects union and non-union workplaces, the employer discharged five employees who were angry about another employee's criticism of their work performance. The five employees protested on Facebook, and the employer contended that the posts violated its policies against bullying and harassment of co-workers. The Board concluded that the Facebook posts were for "mutual aid and protection," and thus were protected concerted activity. The Board reached this conclusion despite the fact that there was no nexus between the postings, on the one hand, and any complaint, protest, or effort to inform other workers or the public about any employer enforcement, action or decision with respect to employment issues (that is, the typical "protected" subjects), on the other. This could leave employers in the unenviable position of enforcing their policies and risking Board action, or taking no action and risking a bullying, emotional distress, or harassment claim from the victim.

Supply Technologies, Inc. – Maintenance of a mandatory alternative dispute resolution policy which employees might reasonably interpret as blocking their access to the NLRB is unlawful interference under Section 8(a)(1) of the Act, even when the policy expressly says that employees are free to file a charge or complaint with a "government agency." Under the ADR policy at issue in this case, employees were required to agree to resolve all disputes with some specific exclusions that did not reference the National Labor Relations Act or the Board. The policy had multiple sections and accompanying documents, some of which said that the employees were free to use any "government agency" charge or complaint process. The employer terminated five employees who refused to agree to the policy. As a whole, the Board found that the policy was ambiguous because it did not have an express reference to the NLRB or NLRA, and could reasonably be interpreted as limiting an employee's access to the Board. As would be expected, the Board read the ambiguity against the employer. In dissent, former Member Hayes catalogued the decision as yet another where the Board signals "continued reluctance to endorse any form of mandatory alternative dispute resolution encompassing statutory claims for individual workers in a nonunion setting." Employers having or considering mandatory ADR policies will want to revise the policies as necessary to eliminate any ambiguity that might even possibly be interpreted by the Board as interfering with employee rights under the Act.

What's coming in 2013? There is no doubt that the Board as currently constituted has more changes in store. Meanwhile, each of the decisions discussed above is potentially subject to review in a federal Circuit Court of Appeals. Employers and others interested should also watch for the review of the Board's 2011 "microbargaining unit" decision in Specialty Healthcare by the U.S. Court of Appeals for the Sixth Circuit. Constangy is representing the employer in the appeal, with oral argument scheduled for the end of this month and a decision expected by the end of March. It will also be interesting to see what happens with the legal challenges to President Obama's "recess appointments" to the Board, which include Members Sharon Block and Richard Griffin. Each of the decisions summarized above required the participation of at least one of the challenged "recess appointees" to satisfy the required quorum of three for a valid Board decision. If the recess appointments are found to be invalid and that decision is upheld on appeal, all of these Board decisions may become nullities.

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About Constangy, Brooks & Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit

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