Recent NLRB Decisions Overturn Precedent

January 9, 2013

Throughout the month of December, the National Labor Relations Board (NLRB) made four decisions on employer-employee relations relating to the collection of union dues; union involvement in employee discipline; employee use of social media; and employee confidentiality.

Collection of Union Dues

On Dec. 12, 2012, the NLRB in WKYC-TV, Inc. reversed its 1962 decision in Bethlehem Steel.  Reversing a rule in place for 50 years, the NLRB has now determined that an employer’s obligation to check off (i.e. withhold) union dues from employees’ wages does not terminate upon expiration of a collective-bargaining agreement that establishes such an arrangement.

The decision may be read here.

Union Involvement in Employee Discipline

On December 14, 2012, the NLRB reversed a long-standing precedent and held in Alan Ritchey, Inc. that an employer whose employees are represented by a union must bargain with the union before imposing discretionary discipline on a unit employee. The NLRB has held that a unionized  employer must provide its employees’ bargaining representative notice and the opportunity to bargain with it in good faith before exercising its discretion to impose discipline on individual employees relating to job performance, attendance, insubordination, threatening behavior, changing work shifts, hiring temporary employees, etc.

The decision may be read here.

Employee Use of Social Media

On December 14, 2012, in Hispanics United of Buffalo, Inc., the NLRB held that employees’ Facebook comments about another employee’s criticism of their job performance were protected concerted activity under Section 7 of the National Labor Relations Act.  Thus, the employer could not terminate the five employees for their Facebook comments.

The decision may be read here.

Employee Confidentiality

On December 15, 2012, in American Baptist Homes, the NLRB reversed a 1978 Board decision, Anheuser-Busch, Inc., which established a general exemption from disclosure to a union representing an employee concerning discipline for witness statements obtained during an employer’s investigation of employee misconduct.  Under the new NLRB decision, the party asserting the confidentiality defense has the burden of proving that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.  This, of course, will result in greater litigation and less protection for witnesses.

The decision may be read here.