With the election and re-election of President Obama, everyone expected the National Labor Relations Board (“NLRB”) to tilt toward labor. After all, the National Labor Relations Act (“the Act”) was designed to reflect the consequences of the American political pendulum.
In the past couple of months, however, the NLRB has issued two significant decisions that reversed longstanding precedent that had passed muster in multiple Democratic as well as Republican Administrations. These decisions have caused some to speculate whether traditional notions of precedent and predictability may have given way to unabashed predetermined outcome decision-making.
For 50 years, under the authority of Bethlehem Steel, 136 NLRB 1500 (1962), the NLRB has held that a union dues check-off provision in a collective bargaining agreement terminates upon the expiration of the agreement. There are few practitioners even alive today who can remember a different construction of the Act. On December 12, 2012, however, the NLRB held that Bethlehem Steel was incorrectly decided and held that employers must continue to honor due check-off provisions after the contract expires. WKYC-TV, Inc., 339 NLRB No. 30 (2012).
The decision is a big victory for organized labor since a union’s previous inability to receive employer-deducted union membership dues post-contract expiration has played well for employers in leveraging unions to accede to company bargaining demands. No contract, no dues; an especially costly position if the union is also paying benefits to employee-strikers.
Three days after issuing its opinion in WKYC-TV, a second black-letter law decision on the books since 1978 was overruled. In American Baptist Homes of the West, 359 NLRB No. 11 (2012), the NLRB rejected the bright-line holding in Anheuser-Busch, Inc., 359 NLRB 982 (1978), that employers have no duty under the Act to disclose to unions during pre-arbitration discovery witness statements obtained during workplace investigations. In place of the bright-line standard that had been in place for 35 years, the NLRB created a new standard for disclosure of witness statements incorporating a general presumption of disclosure which the employer carries the burden of rebutting.
Under the new standard, employer promises of confidentiality to witnesses who have given statements must be supported by legitimate substantial confidentiality interests. Even if those interests can be demonstrated by the employer, the NLRB further held that possible accommodation of those interests must be bargained with the union.
And there we have it: full-blown pre-arbitral discovery. Query the impact on sexual harassment, substance abuse and dishonesty investigations in unionized workplaces. How many employees will “rat” on a brother/sister knowing full well that the union will quickly and almost certainly have the statement? Solidarity.
It is yet to be determined, of course, whether the NLRB will be able to sustain these positions and departures from precedent before the United States Courts of Appeals and perhaps the United States Supreme Court. It seems unlikely, however, that the NLRB will take its thumb off the scale.