The NLRB rejected Volkswagon (VW) Group of America Inc.’s challenge to the appropriateness of appropriate bargaining unit comprised of a small set of workers at VW’s Chattanooga, Tenn. facility. The Board found the 160 maintenance workers at the plant are easily identifiable as a distinct group, and further found that VW failed to demonstrate that production employees shared an “overwhelming community of interest” with the maintenance employees, such that they should be included as part of the larger unit. Board member Phillip Miscimarra dissented, finding among other reasons, that the employees work in different physical locations. The Volkswagon Group of America Inc.

The U.S. District Court for the Middle District of Pennsylvania ruled that Johnson Controls Inc. retirees were not entitled to unlimited lifetime benefits, because their health care benefits were not vested. After Johnson Controls unilaterally reduced health benefits by instituting a lifetime cap of $50,000 on benefits payable, a class of retirees brought suit under ERISA and the LMRA. Granting summary judgment to the company, the court found that the agreements at issue did not contain “clear and express language” providing for vested unlimited lifetime health care benefits to retirees. The court determined that Third Circuit precedent held that vesting of welfare plan benefits constituted an “extra-ERISA commitment,” and therefore the employer’s commitment had to be in “clear and express” language. The retirees had argued that the court should follow Justice Ruth B. Ginsburg's concurrence in M&G Polymers USA, LLC v. Tackett, where she found that no rule required clear and express language to show that the parties intended health care benefits to vest. However, the district court rejected this argument, determining that the Supreme Court, in its unanimous opinion in Tackett, declined to address whether clear and express language is required by not issuing any specific holding on this point. Further, the court stated that since “the unanimous Tackett Court refused to address the Third Circuit's clear and express language standard, the court declines to follow Justice Ginsburg's additional guidance as it applies to said standard.”Grove v. Johnson Controls Inc.

The U.S. Court of Appeal for the D.C. Circuit upheld a district court’s ruling that CityCenterDC, a mixed-use development built in partnership with the city of Washington D.C., was not required to pay local prevailing wages to its workers. The circuit court ruled that the private/public project was not subject to the Davis- Bacon Act’s wage requirements because the government was not involved in the construction contacts and the project was not a public use. The court held that applying the act to the project would be a “massive” expansion of the law, and rejected the U.S. Department of Labor’s (DOL) argument that the project was a public work because it sits on 10 acres of city land. The court determined that although the city owns the land, it had rented the land to developers in a series of 99-year leases, and the developers entered into the construction contracts, not the city. Further, the court held that even if the city were a party to the contract, the act would not apply because the project was not a public work due to the fact that it did not meet the definition: “public funding for its construction, or government ownership or operation of the completed facility.” District of Columbia and CCDC Office LLC v. Dep’t of Labor et al.

An NLRB Administrative Law Judge (ALJ) held that Kellogg Brown & Root LLC’s (KBR) mandatory arbitration provision in its employment agreement violated federal labor law. The ALJ ordered KBR to rescind or revise the dispute resolution agreement containing the mandatory arbitration provision and to notify employees who have signed the agreement that it has done so. Kellogg Brown & Root LLC.

An NLRB ALJ held that AFL-CIO affiliate violated federal labor law by refusing to officially sign a collective bargaining agreement it negotiated with Von Roll USA Inc. The ALJ found that the parties had reached a “meeting of the minds” regarding a cross-training provision. Therefore, the union’s refusal to sign-off on a draft agreement was unlawful. International Union of Electronic, Electrical, Salaries, Machine and Furniture Workers of America, AFL-CIO, CLC, Local 301 and Von Roll USA, Inc.

National and state business groups filed a motion in federal district court in Texas seeking a preliminary injunction to block the DOL from implementing and enforcing a “new and constricted” interpretation of the Labor-Management Reporting and Disclosure Act (LMRDA) provision that exempts the giving of advice of the LMRDA’s disclosure requirements. The groups filed a brief urging the court to enter a preliminary injunction against the DOL’s new rule on persuader activities, arguing that the rule violated the LMRDA and the First Amendment. Nat’l Fed’n of Independent Bus. V. Perez. See DOL Issues Final Persuader Rule for more information.

A federal judge for the Southern District of New York issued an injunction under Section 10(j) of the NLRA, ordering Wingate of Dutchess Inc., a New York nursing home, to bargain with a SEIU affiliate. The court found that the Board’s general counsel demonstrated a strong likelihood of success with respect to various claims that the employer committed unfair labor practices in connection with the union’s organizing drive. The judge agreed with prior findings that the employer had, among other things, unlawfully instituted an employee raise just before a 2014 representation election where workers voted against representation. Despite the union’s election loss, the judge ordered the nursing home to bargain, as well as ordering reinstatement of an employee who was allegedly fired for union activity. Ley v. Wingate of Dutchess Inc.

The Sixth Circuit upheld the NLRB’s finding that an employer illegally fired a dump truck driver who used the company radio and posted signs to complain about working conditions. The circuit court found that the employee’s conduct was protected concerted activity. Because the employer admitted that the firing decision was motivated in part by the driver’s radio calls, the Sixth Circuit said it was compelled to find that the firing was unlawful. Lou’s Transp., Inc v. NLRB.

The D.C. Circuit ruled that the NLRB must reconsider a regional director’s authority to certify a union representative during a period when the Board lacked a three-member quorum. During the period in which the NLRB lacked a quorum, the Hospital of Barstow Inc. entered a consent agreement that gave the NLRB director final authority in an election proceeding. Following an election, the regional director certified the union. The D.C. Circuit rejected the Board’s argument that the hospital waived the quorum issue, and remanded the case to address the issue of whether the official could act without a quorum to take final and unreviewable actions pursuant to the terms of consent agreements. Hosp. of Barstow, Inc. v. NLRB.

The D.C. Circuit upheld a NLRB ruling that Fort Dearborn Co. illegally fired a union organizer who was chief steward for two of the plant’s three bargaining units. The circuit court found the company’s asserted reason for firing the employee – bringing unauthorized visitors to the plant in violation of company policy – was “pretextual” as the rule was not enforced for other employees and the termination occurred shortly after a contentious collective bargaining negotiations. Further, shortly before he was fired, a manager threatened to scrutinize the union organizer closely and find a reason to fire him. Fort Dearborn Co. v. NLRB.

The Eighth Circuit held that Silgan Containers Corp., was not entitled to rescind a union contract provision that the company signed by mistake. The district court held that Missouri law supported the employer’s right to rescind an agreement on pension contributions. The Eighth Circuit reversed, reluctant to interfere with contract negotiations between a labor union and a sophisticated employer. The union representatives were silent with respect to the company’s error, but the court found that the employer was responsible for its own failure to notice a lack of an employer contribution cap for pensions that was included in the prior collective bargaining agreement. The employer read, proofed, and edited the contract, without making any mention of a cap to pension contributions. The circuit court determined the employer was not entitled to judicial relief of a mistake of its own making. Silgan Containers Corp. v. Sheet Metal Workers Local 2.

An NLRB ALJ ruled that Quicken Loans and other related companies’ rules contained in an employee manual called “The Big Book,” which warned against posting workplace issues “online,” and encouraged communicating directly with team leaders and management, could reasonably be interpreted as violating employees’ federal labor law rights to debate and communicate with others about the terms and conditions of their employment. The ALJ recommended the companies post notices in offices stating that they will cease using the rules deemed overbroad. Quicken Loans Inc. et al. and Hugh MacEachern.

A Wisconsin state court judge struck down a Wisconsin’s right-to-work law banning labor contracts that require private sector workers to pay union dues. Several unions, including the AFL-CIO and United Steelworkers, filed suit challenging the law as unconstitutional because it was the “taking” of union property without just compensation, because the union must function on the workers behalf who no longer have to pay union dues as condition of employment. The state’s justice department, arguing in support of the law, stated that the Seventh Circuit had already rejected this position in upholding a right-to-work law in Indiana. The decision is expected to be appealed. International Association of Machinist District 10 and its Local Lodge 1061 et al. v. State of Wisconsin et al.

A federal district court rejected the NLRB’s request for a preliminary injunction against TruStone Financial Credit Union in Minnesota. The judge ordered the credit union to post a notice informing its employees about its labor dispute with the OPEIU union and to advise employees about remedial measures that the employer will be required to make if they are ultimately found to have violated the federal labor law. The NLRB asked that the credit union be ordered to recognize the union as the bargaining agent and to cease making unilateral changes in employment conditions. The court rejected the NLRB’s argument that an injunction was necessary to avoid irreparable harm and instead ordered the credit union to post the notice within 10 days. Osthus v. TruStone Fin. Fed. Credit Union.

The U.S. Court of Appeals for the Fourth Circuit held that the NLRB acted within its discretion in certifying a union local to represent maintenance employees at an ice cream plant separately from the production workers in the same facility. The employer had challenged the NLRB’s bargaining unit determination to allow the International Union of Operating Engineers Local 501 to represent a bargaining unit of 113 maintenance workers, which improperly excluded some 578 production workers. The Fourth Circuit was satisfied that applying the “overwhelming community of interest” did not run afoul of the NLRA's proscription on the Board giving controlling effect to the extent to which a union has organized employees. The court rejected the company’s claim that the Board’s ruling “exceeded the reasonable boundaries of the adjudicative process and abused its discretion.” The appeals court determined that the NLRB “may adopt new regulatory principles through adjudication rather than rulemaking,” and Specialty Healthcare's “clarification of agency law through adjudication” was not an abuse of the Board's jurisdiction under the NLRA. Nestle Dreyer’s Ice Cream Co. v. NLRB.

The D.C. Circuit held that musicians who sign up to perform in seasonal concerts at the Lancaster Symphony Orchestra were employees with the right to engage in collective bargaining. The NLRB had previously found the musicians to be employees, despite being classified as independent contractors, and ordered the orchestra to bargain with the American Federation of Musicians local, after the musicians voted for representation. The circuit court upheld the Board’s findings based on the amount of control the orchestra exercises over the musicians, even though the musicians are seasonal and sign agreements saying they are independent contractors to be paid for each performance and rehearsal. Lancaster Symphony Orchestra v. NLRB.

The Third Circuit upheld a Board finding that a waste disposal company unlawfully refused to bargain with a union that won a 2014 representation election, even though the Board regional director at the time lacked authority to conduct an election because the NLRB lacked a valid quorum under the NLRB v. Noel Canning. The circuit court concluded that the even though NLRB regional director Dennis Walsh, who oversaw the election at the company, was appointed at time when the Board lacked a valid quorum, he and the Board properly ratified previously unauthorized actions. As such, the court found that the Board’s determination that the company violated labor laws by refusing to collectively bargain could stand. The court rejected the Board’s claims that the company forfeited its right to challenge Walsh’s authority to conduct the election by signing a stipulated election agreement, but it held that the Board and Walsh resolved the quorum violations by meeting the ratification requirements. Advanced Disposal Services East Inc. v. NLRB.

The Sixth Circuit ruled that an employer had the right to repudiate statutory and contractual obligations under a pre-hire collective bargaining agreement when the employer did not employ anyone in the relevant bargaining unit. The court held that the Ohio district court did not err in adopting the so-called single-employee unit rule, which allows an employer to repudiate statutory and contractual obligations under an 8(f) agreement, when the employer has no more than one permanent worker. Baker Concrete Construction Inc. v. Reinforced Concrete Contractors Assoc.

While the NLRB ruled that several of a Michigan’s hospital’s workplace rules regarding interactions were unlawful, one Board member stated that it might be time to revise the decade-old test for evaluating such rules. The split three-member panel concluded that the hospital’s code of conduct rules, including those that impede relationship and interactions, and those that barred negative or disparaging comments of employees or physicians, violated the NLRA. The Board held that the employees “would reasonably construe” the provision to prohibit protected activities under the Act. Board member Philip Miscimarra dissented, stating that the time has come to abandon the standard, because there was no evidence that the rule actually discouraged or interfered with NLRA-protected activity. He likewise stated that the standard failed to take into account any legitimate justifications for policies and tends to overturn neutral rules when they are somewhat ambiguous. William Beaumont Hospital and Jeri Antilla.

The NLRB declined to review a representation election where 700 janitorial workers employed by Airway Cleaners LLC – which contracts with airlines at JFK International Airport – chose representation by the SEIU over incumbent union, the United Workers of America Local 660 (UWA). The UWA contested the results of the election, alleging that the NLRB’s jurisdiction over the election was called into question following its decision in Browning-Ferris Industries of California Inc., which set out standard for when two entities can be joint employer. UWA had argued that Airway may be a joint employer with the airline carrier, making it exempt from the NLRB’s jurisdiction and subject to the Railway Labor Act. Airway Cleaners LLC.