Not Such A Happy Holiday For Employers: NLRB Releases Trio Of New Cases
In a flurry of new decisions issued shortly before the holiday, the National Labor Relations Board continues to significantly alter the labor law landscape on topics such as employee discipline, dues checkoff, and social media.
In the first groundbreaking decision, Alan Ritchey Inc., the company and its recently-certified union were negotiating their first collective bargaining agreement. Before an agreement was reached, the company disciplined a union employee. The union filed an unfair labor practice charge, arguing that the company should have bargained before disciplining the employee. The Board agreed, ruling that before the first union contract is in place, the employer must offer to bargain over the decision to discipline a union employee. Although the Board hoped to encourage “even-handed and uniform application of rules of conduct,” in practice employers face one additional hurdle before issuing corrective action while trying to bargain a first contract.
In a second significant decision, WKYC-TV, Gannet Co. Inc., the Board ruled that employers must continue to honor arrangements to deduct union dues from employee paychecks even after the collective bargaining agreement has expired. This decision represents a substantial change for many employers and overrules half a century of labor law precedent on the issue. The Board thus stripped employers of a valuable bargaining tactic. Employers used to be able to use the threat of loss of dues to pressure the union to reach a new agreement. Now, employers must continue dues deductions until an agreement is reached, or valid impasse allows unilateral employer action.
Finally, in Hispanics United of Buffalo, the Board found that the employer unlawfully fired five employees because of their off-duty Facebook activities. The five targeted a co-worker named Lydia who criticized their work performance. One of the criticized employees, Marianna, sparked a conversation among four other co-workers about the criticism in a Facebook post. Lydia observed and commented on the Facebook postings, and subsequently complained to management about the abusive conduct. All five employees were fired. In reversing the terminations, the Board found the communications were protected, concerted activity under the National Labor Relations Act, and that the protected communications were the only basis for the terminations. The decision illustrates the Board’s application of its existing rules to new technology, in this case limiting discipline for employee use of Facebook as a “virtual water cooler.” It also emphasizes the Board’s continued application of the NLRA to non-union employers.
If you have questions about the effect of the National Labor Relations Board decisions on your workplace, please contact the Foster Pepper Employment and Labor Relations group.