Tag Archives: grievance

NLRB recent decisions

This is the list of the most recent and significant decisions decided by the NLRB:

Hispanics United of BuffaloThe Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co. Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.

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Public Defenders lose at arbitration

Minnesota Lawyer Blog reports on an arbitration award denying the grievance of public defenders.  In summary, public defenders filed a grievance alleging a collective bargaining agreement (CBA) violation when public defenders were assigned too many cases.

The grievants asked for the arbitrator to order the board of public defense to adopt a maximum caseload standard of 400. Evidence presented by the grievants shows that defenders in the Third District have an average of between 660 and 745 cases in the last five years. They say this excessive caseload violates their union contract because it brings rise to ethical concerns over whether the attorneys can provide adequate representation to their clients and creates a risk that the attorneys will violate the Rules of Professional Conduct.

Arbitrator Befort found that there was no violation since the CBA did not mention a caseload cap.  Further, Arbitrator Befort found that there had been no discipline of attorneys relating to having too many cases.

Befort concluded that the issue was best decided by the state legislature that allocates funding for public defense, and not a union contract dispute.

“[T]his is not a problem that has been caused by the failure of the State Board of Public Defense to fulfill its obligations under the parties’ collective bargaining agreement. Ultimately, the problem at hand is political in nature and requires resolution at a different forum,” he wrote.

A copy of the decision is here.

via PDs lose at arbitration – MinnLawyer Blog.

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Union Relations Privilege

Mitchell H. Rubinstein, over at the Adjunct Law Prof Blog, sends along this important development in labor relations law from Alaska:

The Court held that “[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State’s union employees a union-relations privilege.”  The reasoning employed by the Court – that “the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee” and that recognizing a privilege “harmonizes [the state labor relations act]‘s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules” – should be useful in other states and in other settings where this issue frequently arises.

I agree with Mich that this is a “major decision.” And like him, I hope other states soon follow suit. For those interested in this topic, Mitch wrote a law review article on this topic a few years ago: Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley Journal of Labor and Employment Law 221 (2008).

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