It is no secret that the National Labor Relations Board (the “Board”) is engaged in a purposeful and partisan attempt to issue rules and decisions that benefit unions, often to the detriment of employers, including attempts by the Board to assert itself into non-union workplaces.    The decisions that the Board has issued over the past few weeks illustrate that this trend is likely to continue during President Obama’s second term.  Indeed, the holiday season has provided unions with additional reason to celebrate as, among other things, the Board has overturned decades of precedent with regard to the law surrounding check-off of union dues following expiration of a collective bargaining agreement and the confidentiality of witness statements.  Here is a summary of several of the Board’s latest pro-union decisions and their potential impact on employers:

1)      Confidentiality of Witness Statements.  For 34 years the Board has recognized witness statements collected by an employer during the course of an internal disciplinary investigation to be privileged and not subject to disclosure to the Union.  But in the recent decision of Piedmont Gardens the Board overturned this bright line rule and replaced it with a balancing test that weighs the union’s need for the information against the employer’s legitimate and substantial confidentiality interests.  This decision may decrease the likelihood that employee witnesses will be willing to participate in investigations, and could prolong and add to the cost of arbitrations as the parties litigate whether witness statements are subject to disclosure.  It is also likely to increase the number of cases that unions will take to arbitration.  We also note that this decision comes on the heels of the Board’s decision limiting an employer’s ability to require employees to keep confidential the contents of an internal investigation.

2)      Union Dues.  In WKYC-TV, Gannet Co. Inc., the Board overturned 50 years of NLRB precedent by ruling that an employer must continue to deduct dues after a collective bargaining agreement has expired.  Previously, if the agreement expired, the employer could cease dues deductions, which served as an important and effective negotiating strategy that forced expeditious bargaining.  Under the new rule, employers are deprived of this bargaining tool.

3)      Social Media.  The Board continues to take an ever broader view as to when employees who comment or engage in discussions concerning their employers and their jobs on Facebook are engaged in concerted, protected activity, even in non-union workplaces.  In Hispanics United of Buffalo, Inc., an employee at a non-union organization threatened to complain to management about her coworkers lack of assistance.  One coworker posted a message on Facebook complaining about this employee and, in her post, asked how her coworkers felt about the complainant.  Four co-workers commented on the post.  The employer subsequently terminated the five employees who posted on Facebook, and they promptly filed an unfair labor practice charge with the Board alleging that they had engaged in concerted protected activity under Section 7 of the National Labor Relations Act.  The Board agreed with the employees and ordered the employer to reinstate them with backpay.

Even where the Board finds that a discharge was lawful and not based on an employee’s protected activity, the social media policy underlying the termination decision may nonetheless be found to be unlawfully broad and violative of the Act.  Such was the Board’s ruling in Knauz Motors, Inc. in which the Board upheld a termination decision, but held that a “courtesy” policy in the company’s employee handbook was unlawfully broad because employees could reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the reputation of the company” as infringing on employees’ Section 7 rights to engage in concerted activity about their terms and conditions.

4)      Bargaining Over Discretionary Discipline.  In Alan Ritchey, Inc. the Board ruled that an employer whose employees were recently unionized but are not yet covered by a collective bargaining agreement with a grievance and arbitration procedure, must notify the union and offer it the opportunity to bargain before enforcing discretionary discipline on its union represented employees.  This decision does not apply to oral or written warnings for misbehavior, but does apply to changes in workplace policies, discretionary employee suspensions, demotions, and terminations that are made on a case-by-case basis.

5)      Taxes on Backpay Awards.  Under the Board’s recent decision in Latino Express, employers will be required to compensate workers for any additional taxes incurred as a result of their receipt of backpay in a lump sum.  In addition, employers ordered to pay back wages must file a report with the Social Security Administration that allocates the back wages to the years in which they were or would have been earned.  This decision is intended to address a situation in which an employee receives a lump sum backpay award covering more than one calendar year that pushes the worker into a higher tax bracket and results in the worker paying more in income and social security taxes than if the money had been paid as wages in the year(s) in which it was earned.

Each of these decisions will make it more difficult for employers to defeat aggressive union tactics and they increase the arsenal of weapons available to unions seeking to organize and represent workers.  Over the next few years, expect the Board to continue issuing decisions and rules that favor unions.  The Board’s regional offices prevailed 90.1% of unfair labor practice and compliance decisions in 2012.  Accordingly, it is imperative that employers plan for union organizing in advance and train managers on how to avoid committing unfair labor practices in both unionized and non-union settings.

The Board is targeting all employers, not just those who are likely to face a union organizing campaign.  Employees should audit and revise their policies to prepare in advance for the Board’s ramped-up enforcement efforts.

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