NLRB Wraps Up 2012 With Series of Significant Decisions

December 31, 2012

As 2012 draws to a close, unionized and non-unionized employers should be aware of a handful of decisions handed down by the NLRB that will impact employee relations in the new year. WKYC-TV:  The Board reversed a long-standing rule that dues checkoff provisions in CBAs do not continue after the contract expires. Under Board law, most terms which are mandatory subjects of bargaining continue in place at the expiration of the contact until a new agreement is reached. Historically, there are exceptions to this rule such as for no strike and dues checkoff provisions. In WKYC-TV, however, the Board overturned decades of Board law and ruled that an employer's obligation to check off union dues continues after expiration of a collective bargaining agreement that establishes such an arrangement.  Hispanic United of Buffalo: This is the NLRB’s third opinion since September on employee use of social media. The case arose out of a 2011 ALJ decision concerning employee terminations for negative Facebook posts about their employment.  In upholding the discharges as unlawful, the Board expressly stated that it will treat employee social media activity wherever it occurs – the colloquy around the Facebook “virtual water cooler” – using the same analytical framework as analyzing violations of employees’ protected concerted activity inside the workplace. Chicago Mathematics & Science Academy:  The Board found that it had jurisdiction over an Illinois non-profit corporation operating a public charter school in Chicago. It is well established that the Board does not assert jurisdiction over public schools established by the state or local governments. Generally, an entity such as a public school is considered a political subdivision not subject to NLRB jurisdiction if it is either (1) created directly by the state so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate. Here, while CMSA was subject to statutory restrictions, regulations and privileges that private employers were not, there was no unique relationship between the state and the charter school which required the Board to decline jurisdiction. Latino ExpressThe Board required employers to compensate employees for any extra taxes they have to pay as a result of receiving a lump sum backpay award, and required employers ordered to pay back wages to file a report with the Social Security Administration allocating the back wages to the years in which the money should have been earned. Alan Ritchey, Inc.: The Board found that during first contract negotiations when there is no collectively bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension of employees. We expect more employee-friendly decisions from the Board’s Democratic majority in 2013. Employers should keep apprised of all NLRB developments and work with counsel to confirm compliance with continually developing Board law.  Please contact James J. McGovern, III Esq., or Douglas J. Klein, Esq.,, in the Labor Law Practice Group with questions on these and other decisions.

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