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In Post-Election Spree, NLRB Discards Precedent At Every Turn

At the current rate, it will be hard to find a legal precedent of the National Labor Relations Board (NLRB) that that still stands after the slew of reversals in 2012. Although we’ve already covered some of these, they bear repeating. In December alone, the Board issued several decisions that reversed significant precedent of the Board itself and of federal courts, always resulting in an advantage for organized labor.

The most significant change was the half-century old precedent of Bethlehem Steel being reversed in a case called WKYC-TV. The 1962 decision was clear that when a contract between a union and an employer expired, the employer was no longer obligated to deduct union dues from the employees’ paychecks, per their dues check-off. But the 3-1 decision reversed that for “compelling statutory and policy reasons.” The now-departed sole Republican member of the Board dissented, arguing that a 50-plus-year-old precedent should not be reversed with no evidence that it has, in any way, affected collective bargaining or the settling of disputes.

The watershed Supreme Court case, Communications Workers of America v. Beck, was dealt a blow by the Board’s Kent Hospital decision. The NLRB determined that even if a union member wants to opt out of political spending by the union (be a Beck objector) lobbying may still be a chargeable expense if it is germane to other chargeable expenses, including collective bargaining and grievances

In the Alan Ritchey decision, the NLRB said that an employer must negotiate any discretionary aspect of its disciplinary procedure. In this case, that was required even when the employees had voted to unionize but had not completed the collective bargaining process or signed a contract. The Board considered this an impermissible unilateral change to the disciplinary system because of the discretionary aspect. This reversed precedent of the Board from a 2002 case, Fresno Bee, where the NLRB accepted a judge’s ruling that if the disciplinary system, including the existence of discretionary aspects, remained the same, it was not a unilateral change.

Piedmont Gardens, also decided in December, reversed a 34-year-old precedent in requiring employers to use a balancing test to determine if an employee’s witness statements during an investigation can remain confidential. Prior to the ruling, the Anheuser-Busch case, decided in 1978, guaranteed the confidentiality of witness statements because the employer requirement to provide relevant information to a union in the course of an employment action did not include those statements.

Facebook posts were even used as an excuse to overturn precedent on employee concerted activity. Hispanics United of Buffalo presented the case of an employer firing employees for Facebook posts that questioned if their jobs were secure due to the employer’s job listings.  While precedent is clear that “mere griping” or “venting,” as dissenting Board member Brian Hayes put it, is not concerted activity, the Board nonetheless determined that the subject of the Facebook post related to a matter that could be a part of concerted activity.

Per the particular circumstances, the NLRB’s decision in Chicago Mathematics & Science Academy Charter School was actually a decision against the teachers union. The union asked that the school, a nonprofit corporation, be exempt from NLRB jurisdiction because it was a validly exempt government entity. While precedent dictated that entities intertwined with government, such as horse and dog racing and private universities, were exempt from NLRB jurisdiction, the Board determined that it could take up the case. Despite this being contrary to labor’s position, the long-term effects of the decision, will mean that the NLRB can involve itself in charter school union disputes. In the wake of Michigan becoming a right-to-work state, organized labor has already made it clear that it intends to step up its efforts to unionize charter schools.

It’s not even beyond this Board to overturn precedent about overturning precedent. The Dish Network case presented this peculiar scenario is which the NLRB opted to overturn precedent sua sponte—meaning, on its own, without being asked to do so by a party to the case. As Fred Wszolek explains:

Without a whiff of concern for the legal procedures that govern the courts and protect fundamental due process, the NLRB declared that the “familiar axiom” that the General Counsel is the “final authority, on behalf of the Board,” with regard to the prosecution of complaints, is no longer applicable.  According to the two NLRB members, the Board is “supreme” in its sphere and it, and it alone, will determine the issues to be decided.  The fact a matter was un-pled and un-litigated will not be a constraint.

In other words, the NLRB can decide to take on issues that were not in a complaint and come to a decision regarding a tangentially related precedent.

Remember that all of these cases have been decided in the last month, just outside of the election and just before the only dissenting vote has departed from the Board. Just prior to the election, in Finley Hospital, the NLRB once again overruled precedent when it determined that an employer must continue to increase wages as according to a collective bargaining contract even after that contract has expired. And it’s not easy to forget the Specialty Healthcare decision on micro-unions that also threw out decades of precedent.

Generally speaking, precedent is respected because it is often the only way that would-be plaintiffs can know the expected outcome of a case. A law, as written, is often not settled until it is challenged and a judge or proper administrative body has decided how it will apply in practice. Once it is decided, however, most expect that those rulings will serve as an indicator to others who are similarly situated. It’s important for precedent to be respected and followed unless it is gravely incorrect.

So the NLRB, as a way to act as though its precedent changes are soft, has said in many of these cases, including WKYC-TV, that the change will only apply prospectively. But this is disingenuous. These changes are still radical, and it would be outrageous to attempt to apply them retroactively because in some cases the precedent dates back over 50 years. Prospective application is no more than a procedural ploy, not a real way to limit the impact of these incredible changes.

The timing of these decisions should also not be ignored. Now that the election is over and Hayes has left the Board, this rapid-fire release of decisions should be seen as a foreboding sign of things to come. With a likely unanimous three-member board ruling on every case, the NLRB will be accomplishing more for organized labor than has been done in any elected legislature for decades. No matter what case law and precedent has built up, Obama’s labor board knows it takes but a stroke of the pen to knock it all down.

Categories: Center for Union FactsLegalNLRB