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NLRB Overturns Prior Decision Regarding Employer Obligations at Labor Contract Termination

January 3, 2013

In decisions issued in December 2012, the National Labor Relations Board (NLRB) overturned two prior Board decisions which had limited the duty of employers to bargain in good faith with unions. The Board decisions – WKYC-TV, Inc., 359 NLRB No. 30 (Dec. 12, 2012), and American Baptist Homes of the West, 359 NLRB No. 46 (Dec. 15, 2012) bolster the ability of unions to provide meaningful representation to workers.

In the WKYC-TV case, the NLRB reconsidered its decades old decision in Bethlehem Steel, 136 NLRB 1500 (1962), which held that an employer was permitted, at the expiration of a collective bargaining agreement, to stop deducting dues and fees from employee paychecks (and remitting those monies to the union), even though the parties never reached an impasse in bargaining on the matter, and even though the dues and fees were deducted as a result of a voluntary employee check-off. In WKYC-TV, the Board decided that the Bethlehem Steel rule was inconsistent with the usual rule governing changes in terms and conditions of employment after contract expiration – an employer may only make unilateral changes on topics on which it has bargained in good faith to impasse. The Board further found that there were insufficient reasons to treat dues deductions as one of the exceptional contract terms (such as a no-strike clause) which expires as a matter of law when a contract ends. As a result of the WKYC-TV decision, employers will no longer be able to unilaterally cease deducting employee dues and fees upon contract expiration.

Another important element of an employer’s duty to bargain in good faith is its obligation to provide unions with requested information that is necessary and relevant to the union’s evaluation of the merits of a grievance. Nevertheless, in its 1978 decision in Anheuser-Busch, Inc., 237 NLRB 982 (1978), the NLRB established a bright-line rule that employers were not required to provide unions with witness statements obtained by the employer during the course of the employer’s investigation into alleged employee misconduct. In American Baptist Homes, the Board overruled the Anheuser-Busch rule, and held that a union’s request for witness statements should be treated like all other information requests – assuming the requested information is relevant to evaluating the grievance, then the union is entitled to the information, unless the employer asserts a legitimate confidentiality defense, carries the burden of establishing that defense, and that defense outweighs the union’s need for the information. Further, an employer must timely raise such a defense, and, if the defense is valid, the employer must seek to accommodate the union’s request.

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