The U.S. District Court for the Northern District of Illinois denied the NLRB’s petition for a Section 10(j) injunction to force a Chicago-area metals processor to comply with an Administrative Law Judge’s (ALJ) recommended unfair labor practice findings pending appeal of that decision. The court determined that the ALJ’s recommended decision was plagued with flaws and is not likely to survive appeal. Further, the Board’s 15-month delay in seeking the injunction undermined its argument that Arlington employees would be irreparably harmed in the absence of an injunction related to charges that the company illegally withdrew recognition from the USW in July 2014. Winston & Strawn LLP represented the employer, Arlington Metals Corporation. Ohr v. Arlington Metals Corp.    


The NLRB held that Citigroup Inc. and subsidiary Citigroup Banking Corp. violated the National Labor Relations Act (NLRA) by maintaining a class action waiver in its mandatory arbitration agreements. The Board ordered Citigroup to remove the waiver and to ensure that employees were aware of their continuing right to maintain class or collective actions related to wages, hours, and working conditions. In contrast, the Board reversed the ALJ’s decision that Citigroup had violated the NLRA by enforcing the class action waiver during an arbitration, as the Board determined that Citigroup would only have violated the NLRA if it had enforced the waiver in court.Smith v. Citigroup Inc.    


In response to a clarification petition, the NLRB ruled that tugboat captains are not supervisors who fall outside of the protection of federal labor law, despite acknowledging that their commands must be obeyed by their crews and that crew members may be disciplined for failing to follow their instructions. The Board determined that Buchanan Marine LP failed to show “how or for what captains are held accountable,” holding that nothing in the NLRA mandates that the highest-ranking individual in a work group must be considered a supervisor.Buchanan Marine, L.P.    


The U.S. Court of Appeals for the Ninth Circuit held that an employer’s e-mail stating that a dispute was “neither grievable nor arbitrable” did not constitute an express rejection of a union’s demand for arbitration when it was sent a month prior to the union making a demand. Overturning the Central District of California’s grant of summary judgment to Los Robles Regional Medical Center, the Ninth Circuit held that SEIU United Healthcare Workers-West’s lawsuit was not untimely under the LaborManagement Relations Act (LMRA). The Ninth Circuit held that the SEIU could pursue a lawsuit to compel arbitration within six months of the hospital’s unequivocal rejection of arbitration, which could not have occurred prior to the union’s demand for arbitration. SEIU United Healthcare Workers-West v. Los Robles Reg’l Med. Ctr.    


The U.S. Court of Appeals for the Eighth Circuit upheld as constitutional Minnesota’s Individual Providers of Direct Support Services Representation Act, which allows providers of in-home care for Medicaid recipients to seek union representation under the Minnesota Labor Relations Act. About ten states have similar laws.Greene, et al. v. Mark Dayton, et al.    


An NLRB ALJ ruled that Michigan Bell Telephone Co. did not have to disclose to CWA Local 4034 the name of an employee who tipped off the company that employees planned to stop work to protest overtime policies. The ALJ rejected the company’s argument that the employee’s identity was confidential, as the employee did not request confidentiality and the company presented no evidence that the employee would object to disclosure of their identity. Nonetheless, the ALJ accepted the company’s argument that the employee’s identity was irrelevant to the union’s representation of the company’s employees. Mich. Bell Tel. Co.    


The U.S. Court of Appeals for the Fifth Circuit largely upheld the NLRB’s decision that Entergy Mississippi Inc., a subsidiary of Entergy Corp., violated the NLRA by refusing to collectively bargain with the power utility company’s transmission and distribution dispatchers, who the company contends are supervisors. Nonetheless, the Fifth Circuit remanded the decision with the instruction that the Board reconsider the degree to which the dispatchers “assign” field workers by exercising “independent judgment,” considering the definitions announced in the Board’s 2006 opinion. In re Oakwood Healthcare Inc. Entergy Mississippi Inc. v. NLRB.    


The U.S. Court of Appeals for the D.C. Circuit upheld an NLRB finding that Mike-sell’s Potato Chip Company violated federal labor law when it unilaterally changed its employees’ pay and benefits following the expiration of a collective bargaining agreement. Despite the fact that Mike-sell’s participated in 12 bargaining sessions, the court held that the company did not show that it reached a good-faith bargaining impasse with Teamsters Local 957. A finding of impasse would have allowed the company to unilaterally impose the terms of its last offer to the union. Because impasse, nor an agreement on new terms, was reached, the court stated that the terms of the expired agreement had to remain in effect. Mike-sell’s Potato Chip Co. v. NLRB.    


The NLRB held that a private hospital violated the NLRA by assigning its nurses to train students at a state university without bargaining with the nurses’ union. A management rights clause in the nurses’ contract, which stated that the hospital could assign nurses to an education unit at the State University of New York, did not constitute a waiver of bargaining rights by the union according to the NLRB. Nurses selected to participate in the unit would be paid by the university and be considered employees of both the university and the hospital. The Board found that the hospital violated the NLRA further by failing to provide the union with access to information about the education unit. Olean Gen. Hosp.    


The NLRB upheld an ALJ’s finding that Employers Resource, a payroll and personnel services organization, violated the NLRA by attempting to enforce an arbitration agreement in an effort to block a class action filed by a client’s former employee. While Employers Resource did not employ the individual against whom they sought to enforce the arbitration agreement, the company required that their client—the employer—obtain employee signatures to the agreement, which did not expressly ban class or collective arbitration of claims. The Board determined that the agreement constituted an unfair labor practice, as it restricted employees’ ability to pursue class or collective litigation of employment claims. Employers Resource.    


An NLRB ALJ held that three pro-cannabis corporations are a single employer or are joint employers under the NLRA, holding all three responsible for one corporation’s refusal to hire an individual who engaged in pro-union activities. The NLRB’s General Counsel introduced evidence that the separate corporations were joint employers or a single employer, including a previous settlement signed by all three companies as “Single Employer and/or Joint Employers,” as well as affidavits signed by the president of all three companies and the Chief Operating Officer of one of the companies. The ALJ determined that since the president controlled the labor relations of all three employers, the companies were considered a joint employer under the NLRA.Campaign for the Restoration and Regulation of Hemp.    


The U.S. Court of Appeals for the Seventh Circuit held that the NLRB could reconsider a matter where the Board’s prior order had been vacated due to an improper quorum under the Supreme Court’s ruling in Noel Canning. The Seventh Circuit reasoned that the NLRB could rehear the case as the quorum decision was not a ruling on the merits. In both hearings, the Board held that Big Ridge, Inc. violated the NLRA by firing an employee for engaging in union activities. Big Ridge, Inc. v. NLRB.    


The U.S. Court of Appeals for the Fourth Circuit upheld the NLRB’s ruling that a company was required to pay more than $95,000 in back pay to an employee who was illegally fired and then offered his job back. The court held that the Board acted within its discretion in finding that, while the employee lied to prospective employers to hide the gap in his employment record, his misrepresentations did not affect the company’s unfair labor practices liability. NLRB v. Pessoa Constr. Co.    


The NLRB upheld an ALJ’s finding that a solar energy company engaged in an unfair labor practice by requiring its employees to waive their right to participate in class, collective, or joint actions under the terms of an arbitration agreement. While the arbitration agreement permitted employees to file charges or complaints with federal agencies, which could then pursue claims on behalf of the workers, the NLRB held that filing charges with a federal agency was “not an adequate substitute for filing a lawsuit asserting a joint, class, or collective claim.” The Board noted that federal agencies cannot pursue certain claims on behalf of workers, that agencies have discretion to decide whether to pursue claims on behalf of workers, and that agencies are not “judicial forums” that can adequately adjudicate workers’ claims. SolarCity Corp.    


The NLRB ruled that Whole Foods Market Inc. violated the NLRA by maintaining a policy that banned workers from recording conversations, meetings, phone calls, or protected union activity without receiving prior approval. Determining that the policy was overbroad and that it could chill the workers’ exercise of their legally protected rights, the Board overruled the ALJ’s earlier decision that employees did not have a right under the NLRA to record conversations. Whole Foods argued that the policy was intended to encourage employees to openly discuss workplace issues without fearing retribution. Whole Foods Mkt., Inc.    


The U.S. Bankruptcy Court for the Northern District of Alabama approved Walter Energy Inc.’s request to reject retiree benefit obligations and collective bargaining agreements with the United Mine Workers of America and the USW, allowing the bankrupt coal mining company to sell its assets to lenders, impose final labor proposals, terminate retiree benefits, and pay key employees retention benefits worth $2 million. Walter Energy, which filed for Chapter 11 bankruptcy protection in July 2015, will auction its assets in January 2016. Lenders have offered to exchange $1.25 billion of the company’s debt and to pay $5.4 million, contingent on court approval of the company’s rejection of the agreements. While affected pension funds argued that the company’s rejection would lead to a $1 billion liability, the court reasoned that maintaining coal operations, keeping the mines open, and creating future job opportunities necessitated the company’s rejection of the agreements. In re Walter Energy, Inc.    


The U.S. Court of Appeals for the Sixth Circuit held that B&B Mechanical Services Inc. was liable for $130,000 in unpaid contributions to a multiemployer benefit fund to which the company voluntarily contributed for 10 years. The court reasoned that while agreements to pay into pension funds must be in writing, they do not have to be collective bargaining agreements signed by a contributing employer. Although B&B never signed a collective bargaining agreement obligating it to pay into the fund, an employer organization representing the company did so on its behalf. Additionally, the court noted that the trust agreement, a surety bond, and a memorandum of understanding all obligated the company to make fund contributions. Bd. of Trs. of the Plumbers, Pipe Fitters & Mech. Equip. Serv., Local Union 392 Pension Fund v. B&B Mech. Servs., Inc.