TBA Law Blog

Posted by: Christy Gibson on Jan 29, 2013

By William A. "Zan" Blue, Jr. and Sarah M. Jones*

The new year is a perfect time to reflect on the National Labor Relations Board’s recent decisions.  The Board issued a flurry of decisions overturning years of precedent; changed existing rules and added new rules to encourage collective bargaining; focused on the facial validity of policies as opposed to focusing on how these policies are applied; and blatantly challenged the authority of courts of appeals.  Below are recent significant decisions and advice memoranda displaying the policy agenda of the Board:

Finley Hospital[i]An annual pay raise provided for in a collective bargaining agreement (CBA) survives contract expiration unless there is a clear provision in the CBA to the contrary. 

The Board found the employer violated Section 8(a)(5) of the National Labor Relations Act (Act) when it stopped giving annual 3-percent pay raises after the CBA expired.  The Board recognized since the contract expired there was no contractual obligation to continue annual wage increases, but the Board determined there was a statutory obligation to pay the annual raises.  The relevant provision of the CBA used the phrases “for the duration of this agreement” and “during the term of this agreement.”  According to the Board, this language did not have a clear and unmistakable mutual waiver of the statutory obligation to maintain terms and conditions of employment after a CBA expires.  Employers and unions now need to bargain for very specific language stating an employer can discontinue specific terms of the CBA after it expires.

WKYC-TV, Inc.[ii] -- Dues checkoff provision survives contract expiration absent a clear provision to the contrary.

This decision overruled more than 50 years of Board precedent. The longstanding rule before this decision was, absent a clear contractual provision to the contrary, dues checkoff provisions went hand-in-hand with union security and no-strike/no-lockout provisions.  These provisions expired when the CBA ended without the need to bargain.  Under the Board's new rule, the employer must bargain with the union before it can lawfully stop dues checkoff unless the CBA clearly states the dues checkoff provision expires at the same time as the CBA.

IronTiger Logistics[iii]Even if a union’s request for information is found to be irrelevant, the employer must promptly respond to the request. 

This Board decision places a duty upon parties to respond to irrelevant information requests within a reasonable amount of time.  The Board determined the employer violated Section 8(a)(5) of the Act because it waited four and a half months to respond to the union’s request for information.  The Board found a violation of the Act even though the Administrative Law Judge decided the information requested by the union was irrelevant and the employer did not need to supply it.  Both employers and unions will need to be sure to respond to requests for information, even when they believe the information is not relevant to the other side, or be prepared to be in violation of the Act.

Marriott International, Inc.[iv]Employer’s policies that limit the access of off-duty employees unless the employees receive management approval are violations of the Act.

In this decision, the Board determined the employer’s policies limiting the access of off-duty employees to interior areas and guest areas of the facility violated Section 8(a)(1) of the Act.  The Board found the employer’s access policies allowed for exceptions to the rules based upon the approval of management.  The policies did not list criteria for management to use when deciding whether to allow access.  The Board decided the policies chilled the ability of employees to exercise Section 7 rights because of the unlimited discretion given to management.  According to the Board, employees are compelled to refrain from Section 7 activity because the activity is prohibited unless management gives approval.  Employers now need to adjust their off-duty access policies.  Any policy that gives managers absolute discretion in whether to allow off-duty employees access could be considered a violation of Section 8(a)(1) of the Act. 

Office of the General Counsel Advice Memoranda.

The Office of the General Counsel released two advice memoranda to explain whether employers violated Section 8(a)(1) of the Act by maintaining at-will employment policies. These memoranda were issued after at least one Administrative Law Judge Decision found an at-will policy to violate Section 8(a)(1).   The General Counsel determined the employers did not violate Section 8(a)(1) by maintaining at-will employment policies in their handbooks.  The General Counsel found the at-will provisions were in compliance with the Act because employees would not reasonably construe the language in the provisions to prohibit Section 7 activity.  These provisions did not contain any language that stated employees could not seek to change their status as at-will employees or agree that it could not be changed in any way.  One provision stated the president of the company could change the status so long as he did so in writing.  The other provision only emphasized the company’s policy that its own representatives could not authorize modification of the at-will classification.   While these advice memoranda determined the Act was not violated, the Board’s scrutiny of common at-will employment clauses shows the current Board’s focus on the facial validity of policies.

What’s in Store for 2013?

On January 25, 2013, the D.C. Circuit Court of Appeals, in Noel Canning, A Div. of Noel Corp. v. NLRB (No. 12-1115), ruled President Obama violated the Constitution when he made three recess appointments to the Board in 2012. This ruling means the Board decisions described above, along with hundreds of other decisions issued by the Board, could be invalid.[v]  The President and the Board appear to be planning to seek a Writ of Certiorari to the U.S. Supreme Court.  This decision also leaves the Board with just one properly appointed member, and the Board cannot issue any decisions without at least three members. However, the Board appears to be planning to issue in further decisions until this issue is resolved by the Supreme Court. 

William A. “Zan” Blue, Jr. and Sarah M. Jones practice Employoment/Labor Law at Constangy, Brooks & Smith, LLP in Nashville, TN.   Zan is a 1983 graduate of Vanderbilt School of Law, Order of the Coif, and is the Office Head/Partner of the Nashville office. Mr. Blue may be reached at zblue@constangy.com or (615) 340-3800. Sarah is a 2011 cum laude graduate of the University of Florida Levin School Of Law. Ms. Jones may be reached at sjones@constangy.com or (615) 340-3815.  For more information on Constangy, Brooks & Smith and/or Mr. Blue and Ms. Jones, visit www.constangy.com.

[i] 359 NLRB No. 9 (Sept. 28, 2012).

[ii] 359 NLRB No. 30 (Dec. 12, 2012).

[iii] 359 NLRB No. 13 (Oct. 23, 2012).

[iv] 359 NLRB No. 8 (Sept. 28, 2012).

[v] Board Chairman Pearce issued the following statement: "The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. . . .  The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."