United States: NLRB Gets Busy – Part 1

Last Updated: January 28 2013
Article by Charles S. Einsiedler, Jr. and Michelle Y. Bush

NLRB Departs from Decades of Precedent

The close of 2012 brought a flurry of activity by the National Labor Relations Board and the Board has not slowed down in the New Year.  Several of the Board's recent decisions mark significant departures from decades of well-settled precedent and many others have ramifications for non-unionized employers.

Each individual decision does not have a direct impact on many of our clients, especially our non-unionized employers. Collectively, however, they represent a considerable change in the direction of the Board that is significant for both our unionized and non-unionized clients.  The Board has no intention of fading into the sunset, even as union membership continues to decline.

In Part 1 of a 2 part Alert series, we summarize the recent Board decisions in which the Board overturned long established precedent. In part 2, we address cases where the Board has acted in non-unionized settings.

1.) Employers Required to Disclose Witness Statements to the Union (Piedmont Gardens, overruling 34 year old precedent)

Since 1978, the Board has employed a bright-line rule holding that employers are not required to honor union requests for witness statements obtained during an employer's investigation of employee misconduct.  In Piedmont Gardens, decided in December, the Board abandoned this bright line rule and will now apply a "balancing test", weighing the union's need for the requested statements against any legitimate and substantial confidentiality interests established by the employer.

For example, if the union asks for witness statements because it claims it needs to review them in order to determine whether to process a grievance, the employer would have to articulate a good reason why it does not want to turn over the statements.  The Board stated general concerns over witness intimidation will be insufficient.  Employers must have specific reasons for the refusal.  Even if the employer can establish legitimate and substantial confidentiality interests, it may have to propose some sort of accommodation, such as providing summaries of the witness statements without employee identification that may satisfy the union's claimed need for the information.

Employers have good reasons to want to preserve the confidentiality of witnesses who participate in workplace investigations but employers can no longer count on the bright-line test. 

2.) Obligation to Continue Dues Check-off after Contract Expiration (WKYC-TV, Gannet Co., Inc., overruling 50 year old precedent)

In another complete departure from decades-old precedent, the Board expressly overruled 51 years of precedent and held that an employer's obligation to continue to check off union dues continues after expiration of a collective bargaining agreement that establishes such an arrangement.

When a collective bargaining agreement expires, most provisions of the agreement that relate to "terms and conditions of employment" survive as the "status quo" and an employer cannot unilaterally change them without first bargaining to impasse with the union.  There are some terms of the agreement, however, that the Board has long held do not survive after the expiration of a collective bargaining agreement, among them no-strike clauses, arbitration provisions, and management rights clauses.  Since 1962 dues check-off provisions have been among the short list of terms that expire with the contract.  The initial reasoning behind this now overturned rule was that dues check-off provisions are often a complement to "union security" provisions (requiring employees to join the union) which expire with the contract.

In mid-December, the Board rejected this reasoning noting that some collective bargaining agreements provide for dues check-off even when there is no corresponding union security clause.  The bottom line is that employers who agree to check off union dues will have to continue to do so after contract expiration unless they bargain to impasse with the union over the decision to cease dues check-off.

3.) Duty to Bargain over Discretionary Discipline after Union Certification (Alan Ritchey, Inc., departing from 77 years of precedent)

Another significant change for employers is the Board's recent decision that employers have a duty to bargain with a union before imposition of discipline, if there is not yet a collective bargaining agreement between the employer and a newly-certified union.  Although the Board had not previously directly addressed this issue, employers have been imposing discipline without bargaining over the discipline during this post election/ pre-certification window since the Board was created in 1935.

It is well-settled that the "status quo" governs after a union has been certified, but before the union and employer have agreed upon the terms of the first collective bargaining agreement.  That means that during this period the employer can continue to operate in the same manner it has in the past but cannot unilaterally make discretionary changes to that "status quo" without first bargaining to impasse with the union.

The Board's decision in Alan Ritchey is a significant reinterpretation of what amounts to a departure from the "status quo."  The employer in this case had operated for years under a progressive discipline system that gave it discretion, within guidelines, in determining appropriate discipline.  After its employees organized and certified a union as their representative, the employer continued to operate under this discipline system while negotiating the terms of a collective bargaining agreement.  The Board ruled that although the progressive discipline system in a broad sense was the "status quo" and could continue until the execution of the collective bargaining agreement, the employer could not impose discretionary discipline within the confines of that system without bargaining with the union.  If the discretionarydiscipline to be imposed is a suspension, demotion, discharge or another analogous sanction, the employer must bargain with the union over whether to impose that discipline before the discipline is imposed.  If the discipline is of a lesser sanction, the employer can bargain after the discipline.

Although this new rule is only relevant in the window of time between the certification of the union and the execution of the first collective bargaining agreement, it is significant because it operates to tie employers' hands in the imposition of discipline – even when the discipline is taken pursuant to an established progressive discipline system.  The decision of whether and how to discipline an employee almost always involves at least some measure of discretion.

4.) "Gross-up" and New Administrative Requirements For Taxes on Back Pay  (Latino Express, overruling 28 year-old precedent)

On a more technical note – and hopefully not something most employers will have to deal with – the Board issued a decision holding that employers who violate the National Labor Relations Act and are ordered to pay back pay to employees must submit the appropriate documentation to the Social Security Administration so that back pay is allocated to appropriate calendar quarters rather than treated as a lump sum payment.  Further, employers must reimburse the employee for any additional Federal and State income taxes that are a consequence of receiving a lump-sum back pay award.  This decision applies to all pending cases and to all cases going forward and again directly overturns long standing prior Board decisions and practice.

These dramatic changes to the legal landscape are a reminder that the current Board is an active one.  We are monitoring these and other changes and will continue to update employers about the consequences of the Board's decisions. 

Please click here to read Part 2 of this Alert series in which we discuss the Board's renewed emphasis on non-unionized employers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions