In a flurry of activity coinciding with the end of the term of National Labor Relations Board Member Brian Hayes (whose term ended on December 16), the NLRB has issued significant decisions relating to concerted activity conducted on social media, a newly unionized employer’s ability to discipline employees, and an  employer’s obligation to continue dues deductions after the expiration of a contract, among other issues. (With the departure of Member Hayes, the five-member Board now has three members, all of whom are considered by many to be pro-labor.)

In one significant decision, Hispanics United of Buffalo, the NLRB found the employer had unlawfully terminated five employees because of their Facebook posts and comments about a co-worker. The NLRB decided that the Facebook posts and comments were “concerted activity” that was protected by the National Labor Relations Act.

In another case, Alan Ritchey, Inc., the NLRB issued a decision that is of particular importance to newly unionized employers. In that case, the NLRB decided that, where a collectively bargained grievance and arbitration system does not exist, as is usually the case where an employer and a union are bargaining a first contract, an employer generally may not unilaterally exercise discretion in imposing significant discipline (i.e., suspension and termination). Instead, the employer must give the union notice and an opportunity to bargain before imposing such discipline on an employee

In Hawaii Tribune Herald, the NLRB decided that, absent an assurance of confidentiality to the employee from the employer, a witness statement is not exempt from disclosure to the union. The NLRB further decided that the statement was not protected by the attorney work-product privilege, which applies only to documents “specifically created in anticipation of foreseeable litigation.”

In WKYC-TV, Gannet Co., the Board overruled NLRB law (in existence since 1962) and decided that an employer’s obligation under a collective bargaining agreement to deduct dues from an employee’s pay continues even after the expiration of the agreement.

More extensive discussions of these important decisions will follow. In the meantime, please feel free to contact the attorney with whom you regularly work.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.