NLRB Continues to Overrule Precedent Decisions - Articles

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Posted by: Christy Gibson on Apr 2, 2013

Bruce Buchanan*

     In late 2012 and early 2013, the National Labor Relations Board issued several more important decisions overturning prior case law or other important decision-making.  Even though Chairman Pearce said the Board would continue to operate in a normal fashion post-Noel Canning v. NLRB, interestingly, the Board has not issued any more decisions reversing prior case law since then. 

Piedmont Gardens, 359 NLRB No. 46 (2012)

     The Board overruled Anheuser-Busch, 237 NLRB 982 (1978), where Board held general duty to furnish information “does not encompass the duty to furnish witness statements.”  Instead, it will apply the test from Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), which provides for the balancing of confidentiality to determine whether an Employer must provide the Union, upon request,  with written statements of individuals, who are witnesses to employee misconduct  and related conduct. This decision is not to be applied retroactively.

     However, the Board said there may be legitimate and substantial confidentiality interests that warrant consideration, including the risk that employers or unions will intimidate or harass those who have given statements, or that witnesses will be reluctant to give statements for fear of disclosure.

     Detroit Edison requires that if the requested information is determined to be relevant, the party asserting the confidentiality defense has the burden of proving that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.

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

     The Board held an Employer must bargain with the Union before imposing “discretionary discipline” on an employee, although it only applies where the parties do not already have a CBA and only if parties have not agreed upon an interim grievance procedure. The Employer must provide the Union with notice and opportunity to bargain with it in good faith before exercising discretion to impose discipline. The Board did not see a reason for discretionary discipline to be exempt from NLRB v. Katz, 369 U.S. 736 (1962), which holds unilateral changes violate Section 8(a)(5). This decision is to be applied prospectively.

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

     The Board held, in connection with an award of back pay, an employer must routinely: (1) submit the appropriate documentation to Social Security Administration so that when back pay is paid, it will be allocated to appropriate calendar quarters; and (2) reimburse a discriminatee for any additional Federal and State income taxes the discriminatee may owe as a consequence of receiving a lump-sum back pay award covering more than one (1) calendar year. This decision is to be applied retroactively.

DirectTV U.S. DirecTV Holdings, LLC, 359 NLRB No. 54 (2013)

     The Board found several company policies to be in violation of Section (a)(1) of the NLRA. First, DirectTV’s handbook expressly instructs employees, “Do not contact the media” as well as “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.”   It is settled that Section 7 of the NLRA encompasses employee communications about labor disputes with newspaper reporters; thus, employees would reasonably construe the unequivocal language in the Respondent’s rule as prohibiting any and all such protected communications to the media regarding a labor dispute. Furthermore, any rule that requires employees to secure permission from their employer as a precondition to engaging in protected concerted activity on an employee’s free time and in non-work areas is unlawful.

     The Employee handbook states “If law enforcement wants to interview or obtain information regarding a DIRECTV employee. . . ., the employee should contact the security department . . ., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” Respondent’s broadly written rule would lead reasonable employees to conclude that they would be required to contact the Respondent’s security department before cooperating with a Board investigation.

     Finally, DIRECTV’s handbook instructs employees to “[n]ever discuss details about your job, company business or work projects with anyone outside the company” and to “[n]ever give out information about customers or DIRECTV employees.”  Further, the rule expressly includes “employee records” as one of the categories of “company information” that must be held confidential. The explicit prohibition on releasing information concerning the “job” or fellow “DIRECTV employees” as well as “employee records” would reasonably be understood by employees to restrict discussion of their wages and other terms and conditions of employment.


*Bruce Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C., where he represents individuals and employers in all aspects of immigration law as well as employers in employment/labor law. Mr. Buchanan is past chair of the Tennessee Bar Association's Immigration Law Section. He is a contributor to Employment Law Strategist and writes a blog on employer immigration compliance which is at Mr. Buchanan graduated from Vanderbilt School of Law and Florida State University. He may be reached at or (615) 345-0266.