NLRB Was Busy at End of 2012

In the last quarter of 2012, the NLRB issued several significant decisions which will affect both union and non-union employers in the future.  Three decisions in particular are worth noting.  In one, a non-union, non-profit employer was found to have violated the NLRA for discharging five employees for critical statements made on Facebook about a co-worker in violation of the employer’s zero-tolerance anti-bullying policy.  In another, the Board concluded that an employer is no longer always entitled to withhold from a union witness statements gathered during a workplace investigation that leads to the termination of an employee.  Finally, the Board held that employers with a newly certified union that have not yet reached a collective bargaining agreement generally may not unilaterally demote, suspend or discharge employees without first bargaining with the union.

Non-Union Employer Terminating Employees For Criticizing Co-Worker on Facebook.  In Hispanics United of Buffalo, the non-profit, non-union employer terminated five employees under the agency’s EEO non-retaliation/anti-harassment policy for criticizing a co-worker who was critical of their client service.   One of the terminated employees knew that the co-worker intended to express her concerns to the Executive Director and, while home on Saturday, asked her Facebook co-worker friends what they thought of this criticism.  Five off-duty employees responded by objecting to any criticism of their own performance.  The criticized co-worker also responded about the “lies” and reported to the Executive Director the following Monday that the Facebook postings had upset her enough to give her a heart attack.  Following an investigation – which included reviewing copies of the postings – five of the six employees involved were terminated under the agency’s “zero tolerance” for bullying and harassment under the EEO policy.  (The Director’s secretary was not discharged even though she also participated).   The Board’s majority found the Facebook criticisms of the co-worker constituted protected concerted activity and could not be the basis of disciplinary action.   The Board rejected the employer’s argument that the Facebook criticisms constituted bullying and harassment: “legitimate managerial concerns to prevent harassment do not justify policies that discourage the free exercise of Section 7 rights by subjecting employees to . . . discipline on the basis of the subjective reactions of others to their protected activity.”

Confidentiality of Written Witness Statements Collected During Workplace Investigations.  Since 1978, the NLRB has ruled that employers do not need to provide to a union witness statements gathered during a workplace investigation of employee misconduct (because the NLRB does not itself provide copies of witness statements prior to hearings).  However, on December 15, 2012, the NLRB overruled that decision in American Baptist Homes of the West d/b/a Piedmont Gardens.  The issues in American Baptist Homes concerned whether the employer “violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing to provide the Union with the names, job titles, and/or written statements of three individuals who claimed that they witnessed” a nurse sleeping on duty that resulted in the nurse’s termination.  Two of the nurse witnesses submitted their written statements to HR with assurances of confidentiality, but the third nurse slipped her statement under the HR door with only the assumption of confidentiality without being asked for a statement or promised confidentiality.  The NLRB concluded that the employer “violated the Act by failing to provide the witnesses’ names and job titles.”  As for two the witness statements, the Board decided to overrule prior precedent, but to not apply retroactively it to employer in American Baptist Homes.  Nonetheless, because the third statement had been submitted spontaneously without any assurance of confidentiality, the employer was required to produce it to the union.

 Under the Board’s new test, “if the requested information is determined to be relevant, 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.” An employer “asserting the confidentiality defense may not simply refuse to furnish the requested information, but must raise its confidentiality concerns in a timely manner and seek an accommodation from the” union.  The Board majority rejected the dissent’s concern about the impact this would have on workplace investigations, particularly sexual harassment investigations governed by EEOC guidelines:  

The Detroit Edison balancing test is designed to take into account any legitimate and substantial confidentiality interest that an employer may have, which would include concerns about witness intimidation or compliance with EEOC guidelines. Where such concerns exist, the employer will not be required to provide the information, but will merely need to seek an accommodation from the union. It follows, then, that the Detroit Edison test encourages parties to a collective bargaining agreement to work together to accommodate their competing interests.

Duty to Bargain with Union Imposed on Employee Disciplinary Decisions.  In Alan Ritchey, Inc., the Board held for the first time that an employer which has not yet adopted a collective bargaining agreement with a union must first bargain with the union before imposing discretionary disciplinary actions on any employees in the bargaining unit.    The disciplinary actions at issue involved discretionary progressive disciplinary action for absenteeism, insubordination and threatening behavior.   Imposing disciplinary action was found to be a prohibited material unilateral change in the terms and conditions of employment. “[T]he employer has both a duty to maintain an existing policy governing terms and conditions of employment and a duty to bargain over discretionary applications of that policy.”

Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate,  . . .  because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed. Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system. Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment— may properly be deferred until after they are imposed.

The Board rejected concerns with the delay from a duty to bargain before imposing disciplinary action because the pre-imposition bargaining was only required for suspensions, demotions and discharges.  Moreover, “where the preimposition duty to bargain exists, the employer’s obligation is simply to provide the union with notice and an opportunity to bargain before discipline is imposed.  . . .  the employer is not required to bargain to agreement or impasse at this stage; rather, if the parties have not reached agreement, the duty to bargain continues after imposition.”  (emphasis added).  In addition, an employer could still act unilaterally where it “has a reasonable, good-faith belief that an employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel,” such as where “an employee has engaged in unlawful conduct, poses a significant risk of exposing the employer to legal liability for his conduct, or threatens safety, health, or security in or outside the workplace.” “Finally, an employer need not await an overall impasse in bargaining before imposing discipline, so long as it exercises its discretion within existing standards.”

Nonetheless, because this was a new Board policy, it decided to not apply the ruling retroactively to the employer, but to only apply it to disciplinary actions taken in the future.

Other Recent Board Decisions.  The Board also publicized its actions in a few other cases. In Latino Express , the Board decided to require employer to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum and to require employers paying back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. In Chicago Mathematics & Science Academy, the Board concluded that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. In United Nurses & Allied Professionals (Kent Hospital) – The Board, addressed “several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision” and concluded that “ lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment.”  Finally, in WKYC-TV, Gannet Co. “the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.