In a January 25, 2013 decision, Noel Canning, a Division of the Noel Corporation v. National Labor Relations Board, Nos. 12-1115 & 12-1153 (D.C. Cir. Jan 25, 2013), the D.C. Circuit ruled that President Obama's two recess appointments to the Board in January 2012 were invalid. If upheld, this decision would result in the loss of the Board's decision-making authority until it is properly re-constituted, and all decisions it issued in 2012 would be voided, including all of those discussed below. Board Chairman Mark Gaston Pearce issued a statement in response, indicating that the Board intended to continue operating as usual, in accordance with its policy of non-acquiescence. (For an in-depth exploration of this ruling, read the Section Hot Topic, D.C. Circuit Invalidates President's Recess Appointments to the NLRB. -- Ed.)
On the investigatory/prosecutorial side, Acting General Counsel Lafe Solomon announced in a memorandum that in appropriate cases, the Agency will seek frontpay in addition to backpay. The extent and availability of frontpay has not been tested in any Board decision as yet. Solomon also issued his Summary of Operations for FY2012, with aggregate statistics on the Regional Offices' win/loss rate and progress toward meeting time targets.
December was a busy month for the five-member Board, as it issued a flurry of important decisions ahead of the end of Member Brian Hayes' term on December 16, 2012. The Board's decisions included:
Dues Checkoff-- In WKYC-TV, Inc., 359 NLRB No. 30 (12/12/12), the Board overruled long-standing precedent from Bethlehem Steel, 136 NLRB 1500 (1962) in holding that dues checkoff provisions will survive the expiration of the contract that creates them. As a result, employers will no longer be able to unilaterally stop deducting dues from employees' paychecks after the contract expires. The Board's holding will be applied prospectively.
Beck objectors--In the arcane area of Beck law, the Board held that lobbying expenses may be charged to Beck objectors in some circumstances. The Board invited briefing from amici on the issue of how it should determine whether such expenses are germane to collective-bargaining, grievance-processing, or contract administration. United Nurses & Allied Professionals (Kent Hospital), 359 NLRB No. 42 (12/14/12).
Witness Statements in EEO Investigations--The Board also overruled precedent in Piedmont Gardens, Inc., 359 NLRB No. 46 (12/15/12), holding that witness statements given pursuant to EEO investigations may, in some circumstances, be disclosable to a union for grievance-handling purposes. The Board's previous holding had been that such statements need never be turned over.
Mandatory Arbitration Agreements--The Board's decision in Supply Technologies, LLC, 359 NLRB No. 38 (12/14/12), found a non-union employer's mandatory arbitration agreement for employment-related disputes unlawful because it did not explicitly reserve employees' rights to bring charges to the Agency. This area of law appears ripe for continued significant litigation in the circuits.
Jurisdiction--The Board exercised jurisdiction over a Chicago charter school in Chicago Mathematics & Science Academy, 359 NLRB No. 41 (12/14/12), holding that it was not a governmental entity. (Interestingly, it was the employer and not the union in this case that sought the Board's jurisdiction.)
Remedies--In future cases, the Board will seek compensation to cover employees' additional taxes resulting from receiving backpay in a lump sum. Latino Express, 359 NLRB No. 44 (12/18/12).
Social Media and Protected Concerted Activity--Facebook remains fertile ground for protected concerted activity, and the Board analyzes these cases under existing law, with Facebook standing in for the office water cooler. A recent such case, Hispanics United of Buffalo, 359 NLRB No. 37 (12/14/12), had an unusual fact pattern because the protected activity involved complaining about another non-supervisory employee.Pre-Contract Bargaining--The period after a union is initially certified as employees' representative, but before a contract is reached, can be difficult for employers to navigate. The Board brought some additional clarity to employers' obligations in Alan Ritchey, Inc., 359 NLRB No. 40 (12/14/12). In a detailed holding, the Board found that employers must bargain over individual disciplinary decisions in many situations that involve the exercise of employer discretion.
Jennifer Spector is a member of the Section's Employment Rights & Responsibilities Committee and a Senior Field Attorney in the Philadelphia Regional Office of the National Labor Relations Board. The views in this article are Ms. Spector's own and do not necessarily represent those of the National Labor Relations Board.
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