Although the National Labor Relations Board’s 2012 decision in Alan Ritchey, Inc., 359 NLRB No. 40 was invalidated by the United Supreme Court in Noel Canning v. NLRB (2014) because of improper Board recess appointments, an NLRB Administrative Law Judge has decided to follow the “principles” contained in Alan Ritchey anyway, concluding that during the period between the union’s certification or recognition and the parties’ first collective bargaining agreement, an employer whose employees are represented by a union must bargain with the union before imposing discretionary discipline. Kitsap Tenant Support Services, Inc., JD(SF)-29-15 (July 28, 2015)
Articles Discussing Collective Bargaining.
In an era when the National Labor Relations Board seldom finds actions by employers to be reasonable, that agency recently issued two decisions finding that a unilateral change in employee benefits provided under a collective bargaining agreement was consistent with the agreement and therefore lawful. American Electric Power, 362 NLRB No. 92 (2015); Bay Area Healthcare Group dba Corpus Christie Medical Center, 362 NLRB No. 94 (2015).
In a decision highlighting the importance of bargaining in good faith, the National Labor Relations Board recently held that a California Hospital must reimburse the union’s negotiating costs as a remedy for the hospital’s post-election misconduct. NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Harry I. Johnson adopted and expanded the Administrative Law Judge’s (ALJ) decision holding that Hospital of Barstow, Inc. violated the National Labor Relations Act by making unilateral changes to nurse training requirements and by setting preconditions to bargaining.
On March 28, 2013, the United States Court of Appeals for the Second Circuit issued a decision in SDBC Holdings Inc. f/k/a Stella D’oro Biscuit Co., Inc. v. NLRB which held that an employer is not obligated to provide a union with copies of a financial statement, unless, it takes the position during bargaining that it is unable to pay any increased wages. This ruling is highly critical of the reasoning used by the National Labor Relations Board (NLRB). It is an important decision for employers in this circuit on the subject of an employer’s duty to provide financial information and on the subject of impasse and implementation of the final offer.