NLRB Overrules Precedent and Finds that Board May Find a Violation Without a Specific Allegation in the Complaint

 
Monday, August 1, 2016
 

A National Labor Relations Board (Board) panel overturned Board precedent and determined a violation of the National Labor Relations Act can be based on an employer’s failure to inform the union that it did not possess information the union requested, despite the absence of a specific unfair labor practice complaint allegation to that effect.  The administrative law judge found that the employer violated Section 8(a)(5) and (1) of the Act by unilaterally changing its work rules, absenteeism policy, and progressive discipline schedule. The judge, however, determined that the employer did not violate Section 8(a)(5) and (1) by its failure to timely inform the Union that requested information about these changes did not exist. The judge applied the Board’s decision in Raley’s Supermarkets & Drug Centers, 349 NLRB 26 (2007).  The complaint did not mention the nonexistence of the requested information, and therefore, the judge found that the 8(a)(5) violation could not be found.


The Board explained that it was in agreement with the judge with regards to the employer's violation of Section 8(a)(5) and (1) when it unilaterally implemented the changes at issue in this case. However, the Panel reversed the judge’s finding that the employer did not violate the Act by failing to timely inform the Union that it did not possess the requested information. The Board determined that Raley’s Supermarkets should be overruled to the extent that it precludes the Board from considering an unalleged failure to timely disclose that the requested information does not exist when the unalleged issue is closely connected to the subject matter of the complaint and has been fully litigated.  In making this determination, the Board cited Pergament United Sales, Inc. v. NLRB, 920 F.2d 130 (2d Cir. 1990).  Under Pergament, “the Board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is close- ly connected to the subject matter of the complaint and has been fully litigated.” Pergament, 296 NLRB at 334.

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