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NLRB UPDATES - BOARD OVERTURNS SEVERAL LONG-STANDING PRECEDENTS

The National Labor Relations Board continues to take an active pro-union position while reaching decisions overturning long-standing precedents. The term of Brian Hayes, the last Republican member, has expired and the Board is now composed of three Democratic members, all of whom were recess appointments by President Barak Obama.

1. WKYC-TV, Inc., 359 NLRB No. 30 (December 12, 2012)

Overturning a fifty-year precedent, the Board held that an employer's obligation to check off union dues continues after expiration of a collective-bargaining agreement that included a check-off provision. The Board explains that its holding does not preclude parties from expressly and unequivocally agreeing that, following contract expiration, an employer may unilaterally discontinue honoring a dues-checkoff arrangement established in the expired contract, notwithstanding the employer's statutory duty to maintain the status quo. This doctrine is to be applied prospectively by the Board.

2. Piedmont Gardens, 359 NLRB No. 46 (December 15, 2012)

In revoking a 1978 decision, the Board now holds that witness statements made to employers during investigations of employee misconduct will no longer be per se confidential and that the employer may now be under the obligation to furnish copy to the union if it is necessary and relevant to the union's representational role, such as information needed to defend a union member in arbitration. This doctrine is to be applied prospectively by the Board.

3. Latino Express, Inc., 359 NLRB No. 44 (December 18, 2012)

In connection with an award of backpay, the Board will now require employers to: (1) submit the appropriate documentation to the Social Security Administration (SSA) so that when backpay is paid, it will be allocated to the appropriate calendar quarters, and (2) reimburse an employee for any additional Federal and State income taxes the employee may owe as a consequence of receiving a lump-sum backpay award covering more than 1 calendar year. The changes will be applied retroactively and will be included in remedial orders issued in all future and currently pending cases.

4. Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012)

The Board held that after employees have voted to be represented by a union, but before the parties have entered into a collective bargaining agreement, and there is no binding grievance procedure, the employer has a duty to bargain with the union before unilaterally applying disciplinary discharges or suspensions, when the employer although using broad, preexisting standards of conduct, nevertheless exercises discretion in each particular case over whether to discipline and the extent of the disciplinary measure. In such situations, the employer does not have to bargain to agreement or impasse, and can proceed to apply discipline once the union has been given a reasonable opportunity, but must continue to bargain after applying the discipline until an agreement or impasse is reached. Such employer may act unilaterally and impose discipline without providing the union with prior notice where it has a reasonable, good-faith belief that the employee's continued presence on the job presents a serious, imminent danger to the employer's business or personnel. In addition, such employer has no duty to bargain over those aspects of its disciplinary decision that are consistent with past practice or policy. This doctrine is to be applied prospectively by the Board.

 

The Labor Law Group at Fiddler González & Rodríguez, P.S.C., will issue the FGR LABOR WATCH with information of legal issues and developments in areas of interest to our friends and clients. If you know anyone who would like to receive the FGR LABOR WATCH, please feel free to forward this newsletter. For more information about any matter raised in this Labor Watch, please contact your usual FGR labor lawyer or José A. Silva Cofresí at jsilva@fgrlaw.com.

©2014 FIDDLER GONZÁLEZ & RODRÍGUEZ, P.S.C. Permission is granted to view, store, print, copy or distribute the content of this newsletter for noncommercial or personal use, provided you do not alter it and you give us proper credit. The content of this newsletter is for informational purposes only. It is not legal advice or advertising. In addition, the above discussion has been provided in general terms and, therefore, should not be relied upon as legal advice applicable to a specific set of facts and circumstances. Before taking legal action, consult a lawyer you trust. Although we will try to be accurate, you cannot rely on its applicability to your specific problem without consulting your lawyer. Fiddler González & Rodríguez, P.S.C. and the members of the Labor Law Group assume no responsibility to inform you of additional changes in law or any other legal issues related to matters addressed in this email of which we may become aware after the date hereof. This newsletter is not intended to create an attorney-client relationship between you and our firm or any of our attorneys. If we are not already representing you, be mindful that your email communications to any of our lawyers will not be treated as privileged or confidential until you ask us to represent you, we first conduct a conflict of interest search, we agree to represent you and you sign an engagement letter from the law firm.

***IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any United States federal tax advice in this communication (including any attachments) is not intended or written by Fiddler González & Rodríguez, P.S.C. to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. **

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