In a flurry of activity coinciding with the end of the term of National Labor Relations Board Member Brian Hayes (whose term ended on December 16), the NLRB has issued significant decisions relating to concerted activity conducted on social media, a newly unionized employer’s ability to discipline employees, and an employer’s obligation to continue dues deductions after the expiration of a contract, among other issues. (With the departure of Member Hayes, the five-member Board now has three members, all of whom are considered by many to be pro-labor.)
In one significant decision, Hispanics United of Buffalo, the NLRB found the employer had unlawfully terminated five employees because of their Facebook posts and comments about a co-worker. The NLRB decided that the Facebook posts and comments were “concerted activity” protected by the National Labor Relations Act.
In another case, Alan Ritchey, Inc., the NLRB issued a decision that is of particular importance to newly unionized employers. In that case, the NLRB decided that, where a collectively bargained grievance and arbitration system does not exist, as is usually the case where an employer and a union are bargaining a first contract, an employer generally may not unilaterally exercise discretion in imposing significant discipline (i.e., suspension and termination). Instead, the employer must give the union notice and an opportunity to bargain before imposing such discipline on an employee.
In Hawaii Tribune Herald, the NLRB decided that, absent an assurance of confidentiality to the employee from the employer, a witness statement is not exempt from disclosure to the union. The NLRB further decided that the statement was not protected by the attorney work-product privilege, which applies only to documents “specifically created in anticipation of foreseeable litigation.”
In WKYC-TV, Gannet Co., the Board overruled NLRB law (in existence since 1962) and decided that an employer’s obligation under a collective bargaining agreement to deduct dues from an employee’s pay continues even after the expiration of the agreement.
More extensive discussions of these important decisions will follow.