Last week the NLRB issued several significant decisions.   In the press release announcing the decisions, the agency noted that most were actually issued “the week of December 10, but were issued this week following editing and formatting which is typical for the final decisions in a Member’s term.”  This is a reference to Member Hayes’ term expiring on December 16.

A few of the decisions are discussed here; all provide something a little extra to think about as we approach a new year.

Witness Statements Defined

As we discussed in an earlier post, the NLRB was looking at the general definition of “witness statements” obtained during investigation of workplace misconduct.  The general rule of law for 34 years has been that witness statements do not have to be disclosed as part of an information request in pre-arbitral discovery.  See Anheuser-Busch, Inc., 237 NLRB 982 (1978) (“Requiring pre-arbitration disclosure of witness statements would not advance the grievance and arbitration process.”) But, what exactly makes a statement given by a witness in an investigation a “witness statement” that exempts it from disclosure?

In Stephens Media LLC, dba Hawaii Tribune-Herald, 359 NLRB No. 39 (December 14, 2012) the NLRB declined to overrule Anheuser-Busch but did provide some guidance on the definition of a “witness statement,” or more accurately, the decision tells us what is not a witness statement.  The case involved the investigation of an incident involving a steward at the employer’s workplace.   The steward had pursued six grievance arbitration cases in the previous three years.  At the suggestion of the employer’s attorneys, the witness was asked to recount what happened.  A statement was prepared and the witness “made several corrections and signed the document.”  Sometime after the meeting ended, an employer’s representative wrote on the top of the document, “prepared at the advice of counsel in preparation for arbitration.” The steward was discharged and the union requested the employee’s statement as part of an information request.  The employer declined to turn it over, asserting that it was a “witness statement” under Anheuser-Busch, and even if it wasn’t, it was attorney work product.

Te NLRB ruled that the statement was not a witness statement exempt from disclosure under either Anheuser Busch or the attorney work product doctrine.  As to whether the statement was a “witness statement” under NLRB law, the Board ruled that existing law the statement was not exempt because

The record shows that although [the witness] reviewed the statement prepared by [the employer] and signed it, she did not receive any assurance of confidentiality from [the employer].

The NLRB also concluded the document was not privileged under the work product doctrine.  The NLRB noted the law in this area:

The essential question in determining whether a document qualifies as work product is ‘whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’

Central Telephone Co. of Texas, 343 NLRB 987, 988-999 (2004).   Applying this standard, the NLRB ruled the mere request by the employer’s attorneys that the statement be obtained was not enough “because it is at least equally plausible from this testimony” that the meeting with the witness “and preparation of the document were simply part of a routine investigation.”  The NLRB ruled further that the addition of the notation on the document about it being prepared “at the advice of counsel” had been added afterward.

Going forward, in order to make such statements from employees exempt from disclosure it is imperative that proper assurances that such statements will remain confidential unless and until needed an an arbitration hearing.  It also seems apparent the document, if requested on the advice of counsel, should be so marked before the witness signs it.

Bargaining Over Discipline

The Board expanded the employer’s duty to bargain in pre-collective bargaining agreement cases in Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012).  In this case, from the date of a union election to the date of a complaint the employer had issued several disciplines to employees along the range of verbal warning, written warning, suspension and discharge.  All disciplines were made pursuant to an existing five-step progressive disciplinary process that had been prior the the union election.  The NLRB ruled that because there was a discretionary component to the discipline, that is, the employer exercised discretion in deciding the level of discipline based on the conduct, it had a duty to bargain over each discipline.

The NLRB explained an employer’s obligation to maintain the status quo of terms and conditions of employment while bargaining for an agreement:

The Board has recognized that an employer’s obligation to maintain the status quo sometimes entails an obligation to make changes in terms and conditions of employment, when those changes are an established part of the status quo.  Thus, if an employer has an established practice of granting employees a 1-percent increase in the wages on the anniversary of their hire date, an employer does not violate its duty to bargain by making that change unilaterally, it violates its duty if it fails to do so. . .A corollary to this rule, however, is that an employer must always bargain over the discretionary aspect of the change in question.

The Board thus ruled that if there was a discretionary aspect to the change of the employee’s term or condition of employment, then there exists a duty to bargain over such change.  The NLRB then set forth the following rule:

Accordingly, where an employer’s disciplinary system is fixed as to the broad standards for determining whether a violation has occurred, but discretionary as to whether or what type of of discipline will be imposed in particular circumstances, we hold that an employer must maintain the fixed aspects of the discipline system and bargain with the union over the discretionary aspects (if any), e.g., whether to impose discipline in individual cases and, if so, the type of discipline to impose.  The duty to bargain is triggered before a suspension, demotion, discharge or analogous sanction, but after imposition for lesser sanctions, such as oral or written warnings.

So, the takeaway appears to be that in a pre-agreement stage of union representation, the employer must notify the union and offer to bargain before issuing a serious discipline such as suspension, demotion or discharge.  Employers usually deal with this type of situation by putting the employee on administrative leave until after it has had an opportunity to bargain with the union over the level of discipline.  If the discipline is minor, as in a verbal or written warning, the obligation now must notify the union that the discipline has occurred and offer an opportunity to bargain over it.

The Board further explained how this rule should work given the fact that if there exists a duty to bargain, then normally no change may be made unless there is agreement between the parties or a valid impasse has been reached:

Under today’s decision, after the employer has decided (with or without an investigatory interview) to impose certain types of discipline, it must provide the union with notice and an opportunity to bargain over the discretionary aspects of its decision before proceeding to implement the decision.  As explained below, at this stage, the employer need not bargain to agreement or impasse, if it does so afterward.  In exigent circumstances, as defined, the employer may act immediately, provided that, promptly afterward, it provides the union with notice and an opportunity to bargain about the disciplinary decision and its effects.  Finally, if the employer has properly implemented its disciplinary decision without first reaching agreement or impasse, the employer must bargain with the union to agreement or impasse after imposing the discipline.

Thus, the Board explained, in cases where there is a “pre-imposition” obligation to bargain over the discipline, then:

[T]he employer’s obligation is simply to provide the union with notice and an opportunity to bargain before discipline is imposed.  This duty entails sufficient advance notice to the union to provide for meaningful discussion concerning the grounds for imposing discipline in the particular case, as well as the grounds for the form of discipline chosen, to the extent that this choice involved an exercise of discretion.  It will also entail providing the union with relevant information, if a timely request is made, under the Board’s established approach to information requests.  (Again, we note that, in this context, the scope of the duty to provide information is limited to information relevant to the subject of bargaining:  the discretionary aspects of the employer’s disciplinary policy.)

The Board also addressed the sequence of events that should take place if the employer believes it must act immediately to handle a workplace situation:

[A]n employer may act unilaterally and impose discipline without providing the union with notice and an opportunity to bargain in any situation that presents exigent circumstances:  that is, where an employer has a reasonable, good-faith belief that an employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel.  The scope of such exigent circumstances is best defined going forward, case-by-case, but it would surely encompass situations where (for example) the employer reasonably and in good faith believes that an employee has engaged in unlawful conduct, poses a significant risk of exposing the employer to legal liability for his conduct, or threatens safety, health, or security in or outside the workplace.  Thus, our holding today does not prevent an employer from quickly removing an employee from the workplace, limiting the employee’s access to coworkers (consistent with its legal obligations) or equipment, or taking other necessary actions to address exigent circumstances when they exist.

Finally, the Board held that the new rule would not be applied retroactively.  In situations where a union is newly certified and no agreement has been reached, the employer now has a duty to bargain over discipline.

NLRB Finds Facebook Postings Led To Unlawful Terminations

The NLRB has received a lot of attention as it has grappled with the use of social media.  It has been a frequent topic of discussion on this blog.

In a case we highlighted several months ago, the NLRB had issued complaint alleging the terminations at a non-profit over Facebook postings were unlawful.  An Administrative Law Judge found the law had been violated.  In Hispanics United of Buffalo, 359 NLRB No. 37 (December 14, 2012), the NLRB upheld the Administrative Law Judge’s decision.  The issue started when two coworkers discussed work after hours.  The discussion escalated when an employee of the non-profit sent a text message to a fellow coworker stating that she intended to discuss her concerns with the Executive Director of the program.  The coworker then took to Facebook, making a comment that the complaining coworker “feels we don’t help our clients enough at [the employer]. I about had it! My fellow coworkers how do u feel?”  Four off-duty employees responded, posting messages via their personal computers about the complaining employee.

The complaining employee then reported the incident, alleging that her five coworkers had violated the employer’s “bullying and harassment” policy.  The five employees were terminated.

In a 3 to 1 decision (Chairman Pearce and Members Griffin and Block; Member Hayes dissenting), the Board held the terminations were unlawful.  The Board majority noted the standard to be applied in determining whether a discharge violates the Act:

[T]he Board [has] held that the discipline or discharge violates Section 8(a)(1) if the following four elements are established:  (1) the activity engaged in by the employee was ‘concerted’ within the meaning of Section 7 of the Act; (2) the employer new of the concerted nature of the employee’s activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity.

The Board majority noted the employer new about the activity and the discharge was motivated by it, so “[o]nly the first and third elements” were in dispute.  In deciding that the Facebook discussion constituted protected, concerted activity, the Board concluded:

As set forth in her initial Facebook post [the coworker] alerted fellow employees of another employee’s complaint that they ‘don’t help out clients enough,’ stated that she ‘about had it’ with the complaints and solicited her coworkers’ views about this criticism.  By responding to this solicitation with comments of protest, [the coworker’s] four corkers made common cause with her, and, together, their actions were concerted…because they were undertaken ‘with…other employees.’

Because the employer acknowledged discharging the employees solely for the postings, the discharges were deemed unlawful.

Member Hayes, dissenting, saw it differently, viewing the discussion as not something that triggered protection of the Act:

Not all shop talk among employees–whether in-person, telephonic, or on the internet-is concerted within the meaning of Section 7 even if it focuses on a condition of employment.  With respect to the second element [of the test]…for conversations among employees to fall within the definition of concerted activity protected by Section 7 ‘it must appear at the very least that it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees.’ Absent evidence of a nexus to group action, such conversations are mere griping, which the Act does not protect.

In other words, Member Hayes found that merely discussing a workplace concern without evidence that the object was to go further was not enough.

This case involved a direct discussion of an issue of concern to employees, and so it was much more clearly something that would be found to fall within the protection of the Act.  We can contrast this case with the ones we have discussed previously where there a single employee was either making fun of a workplace incident or griping about a situation that already had been resolved.