Friday, December 21, 2012
As is often the case when a Board member is set to leave, the NLRB is issuing many big decisions. As an aside, Member Hayes is leaving, which will leave the Board with just three Democratic appointees. Although I'm certainly more sympathetic to their rulings, I do think the lack of a Republican presence on the Board is not a good thing. In addition to appearance issues of having only one side on the Board, a vigorous dissent can often improve majority decisions and provide some needed balance. Yet another negative side-effect of the mess that Board nominations have turned into.
We've posted on a couple of the decisions already (Hispanics United and WKYC-TV), The Board has nicely summarized those decisions and the others, which I'm now going to crib (I have said recently how much I like the Board communications efforts?):
Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where 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 on employees. Member Hayes was recused.
Latino Express – In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.
Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.
United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.
As Dennis Walsh pointed out to me, the significance of Alan Ritchey is that an employer might violate its duty to bargain by imposing individual discipline on an employee if it doesn't bargain with the union, and the significance of United Nurses is that unions are now able to classify some lobbying expenses. I'm curious to see whether the Board continues to issue similarly significant issues with only three members (e.g, Register-Guard, please!).
Hat Tip: Dennis Walsh