NLRB Update. Attorney Leslie Sammon Axley Brynelson, LLP Groundbreaking Rulings: Internal Investigations

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1 NLRB Update Attorney Leslie Sammon Axley Brynelson, LLP Groundbreaking Rulings: Internal Investigations Board rules that employer violated Section 8(a)(1) of the National Labor Relations Act by maintaining a rule prohibiting employees from discussing the employer s investigation of employee misconduct while the investigation is in progress. Banner Health Systems, d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012).

2 Groundbreaking Rulings: Internal Investigations Board found that hospital s generalized concern with protecting the integrity of internal investigations was insufficient to outweigh employees Section 7 rights to discuss workplace matters with other employees. Groundbreaking Rulings: Internal Investigations Employer cannot require confidentiality from employees during an ongoing investigation unless employer makes a determination in a particular investigation that: A witness is in need of protection; Evidence is in danger of being destroyed; or Testimony is in danger of being fabricated.

3 Groundbreaking Rulings: Witness Statements Board rules that employers must apply a balancing test when arguing that there is a confidentiality interest in protecting witness statements gathered in an internal investigation from disclosure to unions pursuant to information requests. American Baptist Homes of the West d/b/a Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012). Groundbreaking Rulings: Witness Statements Board overturned 34 year old precedent which created a bright line rule exempting employee witness statements gathered in an internal investigation from the general obligation to honor union requests for information under Sections 8(a)(1) and (5) of the NLRA.

4 Groundbreaking Rulings: Witness Statements Board s balancing 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. Groundbreaking Rulings: Witness Statements In addition: Confidentiality concerns must be raised in a timely manner. Asserting the confidentiality defense also requires seeking an accommodation from the other party.

5 Groundbreaking Rulings: Discipline Board overruled precedent and holds that an employer violates the NLRA by not providing notice and an opportunity to bargain before enforcing preexisting, discretionary disciplinary rules during bargaining for an initial collective bargaining agreement, when no operating collectively bargained grievance process exists. Alan Ritchey, Inc., 359 NLRB No. 50 (Dec. 14, 2012). Groundbreaking Rulings: Discipline Imposition of discipline that alters terms or conditions of employment in a material, substantial and significant manner triggers the duty to bargain if the employer is exercising discretion over whether and how to discipline individuals. Duty is triggered before imposing a suspension, demotion, discharge or analogous sanction. Duty may be deferred until after imposing a verbal or written warning or analogous sanction.

6 Groundbreaking Rulings: Dispute Resolution Board rules that employer s mandatory dispute resolution program for non union employees violated NLRA because the program could reasonably be construed to interfere with Section 7 rights. Supply Technologies, 359 NLRB No. 38 (Dec. 14, 2012). Groundbreaking Rulings: Dispute Resolution Board found that employer violated Section 8(a)(1) of the NLRA by maintaining its mandatory grievance arbitration program as the only means for resolving any claims with the employer, threatening employees with discharge if they did not accept the policy, and actually discharging 20 employees who refused to sign the policy.

7 Groundbreaking Rulings: Dispute Resolution Board reasoned that the program s broad scope, its limited exceptions (for claims involving criminal matters, worker s compensation and unemployment compensation) and its requirement that federal statutory claims be brought under the program could be reasonably construed by employees as prohibiting the filing of claims with the Board or other activities protected by Section 7 of the NLRA. Groundbreaking Rulings: Backpay Awards Board rules that an employer owing a backpay award must: 1) submit documentation to the Social Security Administration allocating backpay to the calendar year in which it would have been earned; and 2) reimburse backpay recipients for any excess income taxes recipients may owe as a result of receiving a backpay award covering more than one year. Latino Express, 359 NLRB No. 44 (Dec. 18, 2012).

8 Groundbreaking Rulings: Backpay Awards Board explains that its ruling is an effort to address adverse consequences to employees when backpay is paid in one lump sum and posted to the employee s SS earnings in the year in which it was received: Effect on SS credits and certain monthly benefits Categorization in higher tax bracket with additional income tax liability Groundbreaking Rulings: Union Dues Board rules that a collective bargaining agreement provision authorizing an employer to deduct union dues directly from an employee s paycheck survives the expiration of a collective bargaining agreement. WKYC TV, 359 NLRB No. 30 (2012).

9 Groundbreaking Rulings: Union Dues Board overruled 50 year old precedent holding that a dues check off provision expires when a collective bargaining agreement containing it expires. Board reasons that dues check off is a matter related to wages, hours and other terms and conditions of employment and is a mandatory subject of bargaining. Groundbreaking Rulings: Union Dues Board applies general rule that an employer s obligation to refrain from unilaterally changing mandatory subjects of bargaining applies during a contract hiatus, between expiration of a collective bargaining agreement and reaching agreement on a new collective bargaining agreement, or bargaining to a lawful impasse.

10 Groundbreaking Ruling: Union Dues Board s decision impacts employers ability to cease dues check off upon contract expiration as a legitimate economic weapon in bargaining for a successor agreement. Groundbreaking Rulings: Work Rules Board rules that employer unlawfully interfered with employees rights under NLRA by maintaining work rules in the employee handbook and on its intranet that could reasonably be read by employees as restricting Section 7 rights. DirectTV, 359 NLRB No. 54 (Jan. 25, 2013).

11 Groundbreaking Rulings: Work Rules Rule 1: Work rule instructing employees not to contact the media, as well as related corporate policy that employees should not contact or comment to any media about company rules unless authorized to do so, was unlawful restriction of Section 7 rights to engage in protected, concerted activity. Groundbreaking Rulings: Work Rules Rule 2: Work rule that required employees to contact the employer s security department if law enforcement requested information regarding an employee was deemed unlawful because employees could reasonably construe Board agents as law enforcement and could lead employees to conclude they were required to contact the employer before cooperating in a Board investigation.

12 Groundbreaking Rulings: Work Rules Rule 3: Work rule instructing employees that they should not discuss details about their job, company business or work projects with anyone outside the company and that they should never give out information about customers or employees, including employee records, found unlawful because it could be understood to restrict discussion of terms or conditions of employment or communications with the Board and other agencies regarding workplace matters. Groundbreaking Rulings: Work Rules Rule 4: Rule posted on company s intranet stating employees may not disclose company information (defined as employee records) that is not already disclosed as a public record found unlawful because employees could understand rule as prohibiting disclosure of information concerning their own or other employees wages, discipline and performance.

13 Groundbreaking Rulings: What is the Status? Court decisions issued finding recess appointments to the five member Board are unconstitutional, in part, because the appointments did not occur during a recess of the Senate. What does that mean? Board lacks necessary quorum to decide unfair labor practice cases. Groundbreaking Rulings: What is the Status? D.C. Circuit Court decision, Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), on appeal to United States Supreme Court. If upheld, decision calls into question the validity of thousands of the Board s decisions. In the meantime, Board decisions should be considered as having continued applicability.

14 Questions? Attorney Leslie Sammon Axley Brynelson, LLP