July 23, 2014

Recent NLRB Decisions Expand Employer Obligations

The National Labor Relations Board ("NLRB" or "Board") continues to expand employer obligations under the National Labor Relations Act ("Act"). Below are summaries of four cases recently decided by the NLRB consistent with this trend:

In July 2012, a divided Board ruled in Banner Health System, 358 NLRB 1 (2012), that an employer violated the Act by routinely asking employees who made a complaint to human resources not to discuss their complaint with their coworkers while the investigation was ongoing. The Board ruled that the employer's request unlawfully intruded on employees' right to discuss discipline and disciplinary investigations, a right that is protected by the Act. According to the Board, an employer's "generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees' Section 7 rights." Banner explains that a request for confidentiality might be lawful under some circumstances, such as when the employer determines that witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover-up. But, according to the Board, unless an investigation poses those types of dangers, an employer cannot require or even request confidentiality from its employees while the investigation is ongoing.

In two other recent cases, the Board expanded an employer's obligation to respond to a union's request for information. The first is IronTiger Logistics, Inc., 359 NLRB No. 13, decided in October 2012, by a 2-1 majority. Under well-established Board law, a unionized employer must provide, upon the union's request, information that is relevant and necessary to the union's performance of its duties as the exclusive collective bargaining representative. In this case, however, the union sought information that the employer believed to be irrelevant. The Board ultimately agreed with the employer, ruling that the information sought by the union was indeed irrelevant to the union's representational role. Nevertheless, 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.

Similarly, in early December 2012, the Court of Appeals for the D.C. Circuit upheld another 2-1 NLRB decision that forced a manufacturer to give a union pricing and customer information after the employer maintained during negotiations that it was seeking wage reductions or freezes due to "competitive pressures." KLB Indus., Inc. v. NLRB, 700 F.3d 551 (D.C. Cir. 2012). It has long been settled law that when an employer claims during negotiations that it is unable to pay increased wages, a refusal to provide relevant financial information to substantiate that claim is a violation of the Act. In this case, the employer did not claim it was financially unable to pay increased wages, but only referred to competitive pressures in seeking to reduce or freeze wages. Nonetheless, the Board found, and the D.C. Circuit affirmed, that the employer's refusal to provide information about price quotes, lost customers and marketing strategies under these circumstances violated Section 8(a)(5) of the Act.

Finally, on December 12, 2012, a 3-1 majority of the NLRB overruled a 50-year-old policy relating to an employer's obligation to deduct union dues pursuant to a check-off provision after expiration of a collective bargaining agreement in WKYC-TV, Inc., 359 NLRB No. 30. Generally, upon expiration of a collective bargaining agreement, an employer is obligated to maintain the status quo and continue terms and conditions of employment until the parties reach either an agreement or impasse. However, certain provisions of the labor agreement such as union security clauses, arbitration procedures and no-strike provisions are extinguished when the labor contract expires. For more than 50 years, the NLRB has held that check-off provisions also were extinguished upon the expiration of the labor agreement, and therefore, employers were not obligated post-expiration to deduct union dues and remit them to the union. This provided economic leverage to employers during negotiations. The current Board, however, found that there was no cogent reason why an employer's obligation to collect and remit dues should not be subject to the status quo rule. Thus, on a prospective basis, check-off provisions will survive the expiration of the labor agreement, and an employer's obligation to deduct and remit them to the union will remain in force even after expiration.

These cases demonstrate the current Board's willingness to change certain fundamental ground rules, with potentially significant impact on employers' day-to-day operations. In this challenging environment, Schiff Hardin's Labor and Employment attorneys stand ready to provide you with advice, training and policy reviews to help you to try to minimize NLRB-related risk.

© 2014 Schiff Hardin LLP

About the Author


Henry W. Sledz Jr. concentrates his practice in representing management, encompassing all aspects of employment law, from labor agreement negotiations and arbitrations to litigation before numerous state and federal courts and agencies. This includes a particular emphasis on food and dairy industry clients.

Mr. Sledz also has significant experience in public sector labor law, representing villages, school districts, colleges and universities in labor negotiations, arbitrations and general counseling.


About the Author


Lisa Carey-Davis concentrates her practice in litigation. She has trial and appellate experience across the full spectrum of commercial litigation, including class actions, business torts, contract disputes, and employment discrimination matters. She also has experience in ERISA and employee benefit litigation.


Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.