Union Has Right to Witness Statements - Hawaii Tribune Herald, 359 NLRB No. 39 (2012)

The NLRB held that employers must disclose witness statements which were obtained without a confidentiality promise.  The Board found that the employer was required to furnish the union with a statement signed by an employee and obtained during the course of a workplace investigation.  The NLRB held that a document is only a witness statement if (1) the witness, in some way, either through reading or reviewing the statement or having it read to him, adopted the statement as his own; and (2) the witness received an assurance that the statement would remain confidential.  In Hawaii Tribune, the NLRB held that an employer’s refusal to turn over a statement to the union was unlawful because the document did not constitute an actual “witness statement.”  The statement in question was documentation of an employee’s account of an event he witnessed in the workplace.  Although the statement was prepared by a supervisor, the employee was given the opportunity to make changes to the statement and then signed it as revised.  According to the NLRB, the employee was not assured the statement would remain confidential and, as such, it did not qualify as a witness statement. The Board also rejected the employer's argument that the document was work product in preparation for litigation.  It found that the statement was obtained during a routine investigation.

Irrelevant Information Must Be Promptly Produced by Employer - Iron Tiger Logistics, Inc., 359 N.L.R.B. No. 13 (2012)

The Board found that a unionized employer must respond promptly to a union's request for information even if the information requested is not relevant to the union's representation of the employees.  The employer argued that it did not need to provide the information because it was irrelevant.  The Board ruled that the employer violated Section 8(a)(5) of the Act by waiting more than four months before responding to the union's request. According to the Board, the employer's failure to respond in a more timely fashion to the union's request for information violated the employer's duty to bargain in good faith even though it agreed with the employer that the information was irrelevant.

Board Overturns 50 Year Rule - WKYC-TV, Inc., 359 N.L.R.B. No. 30 (2012)

WKYC-TV addresses the issue of checkoff terms once a collective bargaining agreement expires.  An employer must continue the terms and conditions of employment as set under the expired agreement if they are mandatory subjects of bargaining. These terms remain in place until there is a new agreement or the parties reach an impasse in bargaining. For fifty years the Board followed Bethlehem Steel, which held that union security and dues-checkoff clauses were an exception to this general rule and subject to unilateral termination by the employer upon the expiration of a collective bargaining agreement containing those terms. In WKYC-TV,  the Board held that an employer must continue dues-checkoff after expiration of a collective bargaining agreement.

Employer Must Pay Extra Taxes and File Social Security Reports - Latino Express, 359 N.L.R.B. 44 (2012)

Latino Express requires employers to cover extra taxes on backpay awards and to file reports with the Social Security Administration which provides for correct allocation of the backpay to social security calendar quarters.  The employer needs to submit documentation to the Social Security Administration (SSA) so that an award is allocated to the year the income would have been earned, rather than recorded as a lump sum taxed in the year it is received.  The backpay reimbursements should also provide for any excess income taxes they may owe because the backpay award is paid as a lump sum rather than allocated to the year the income would have been earned if the respondent had not violated the NLRA.

The Board found that these new remedies were necessary to make individuals who receive lump-sum backpay awards whole for losses suffered as a result of unfair labor practices (ULPs).

Union Lobbying Can Be Charged to Nonunion Objectors - United Nurses and Allied Professionals (Kent Hospital), 359 N.L.R.B. No. 30 (2012)

In United Nurses, the Board addressed whether union lobbying expenses can be charged to nonunion objectors.  The Board found that lobbying expenses are chargeable to objectors to the extent that they are relevant to the administration of the collective bargaining agreement or grievance administration. 

The decision also addressed the issue of audit verification letters.  The Board held that the union did not violate the NLRA when it did not provide a nonmember objector with an audit verification letter.  The Board distinguished case law dealing with public sector unions which are required to provide this information.