The U.S. Court of Appeals for the Seventh Circuit became the first federal circuit court to hold, consistent with the National Labor Relations Board’s (NLRB or Board) view in D.R. Horton, Inc., that an employer could not enforce an agreement requiring an employee to individually arbitrate his wage and hour claim, because doing so would violate his rights under the National Labor Relations Act (NLRA). To date, all other federal circuit courts of appeal that have considered similar disputes have reached a contrary result, setting up a circuit split that may be cited as a basis for seeking Supreme Court review. For more details, see our client briefing, Seventh Circuit Invalidates Class and Collective Action Waivers in Arbitration AgreementsLewis v. Epic Sys. Corp.

The NLRB continued invalidating class and collective action waivers in arbitration agreements in separate cases. The NLRB found the waiver in CVS’s arbitration agreement unlawful even though employees had a 30-day period within which to opt out of the agreement. CVS RX Services Inc. and CVS Pharmacy Inc. and Kenneth Sternfeld. Likewise, the majority in an NLRB panel held that Hobby Lobby’s mandatory arbitration agreements, which bar workers from bringing class or collective employment-related claims against the company, were unlawful. Hobby Lobby Stores, Inc. And, the NLRB held that Jack in the Box Inc.’s nationwide arbitration agreement unlawfully prevents employees from pursuing class claims in courts or arbitration. Finally, a separate Board panel found that national temporary staffing company Adecco USA Inc.’s arbitration agreement was illegal for the same reasons. Jack in the Box, Inc.; Adecco USA.

The Fifth Circuit rejected the NLRB’s petition to reconsider its decision finding that Murphy Oil USA Inc.’s mandatory class action waiver was lawful. The Fifth Circuit rejected the NLRB’s ruling that the company could not lawfully require employees to waive the right to pursue a class or collective action. The Fifth Circuit, in denying the rehearing, noted, “Murphy Oil committed no unfair labor practice by requiring employees to relinquish their right to pursue class or collective claims in all forums by signing the arbitration agreements at issue here.”Murphy Oil USA Inc. v. NLRB.

The Third Circuit upheld an NLRB election certification for the National Nurses Organizing Committee for employees at two hospitals in West Virginia. The hospitals challenged the certification arguing that the NLRB’s Regional Director lacked the proper authority to certify the election because the NLRB was lacking the required three-member quorum at the time of his appointment. The hospitals further maintained that the director’s appointment was illegitimate because the acting NLRB general counsel authority to make appointments had lapsed. In rejecting the hospitals’ arguments, the court determined that it “makes no difference” that the general counsel’s authority had lapsed because the Board has the power to appoint the director, not the general counsel. The court also deferred to the NLRB’s conclusion that the director’s appointment was legitimate even though the Board lacked the required minimum number of members. NLRB v. Bluefield Hosp. Co.

The Seventh Circuit upheld an NLRB ruling that ordered Polycon Industries, Inc. to execute a collective bargaining agreement with the Teamsters where both sides had agreed to the terms of the agreement. Although agreement had been reached, Polycon decided not to execute the agreement because workers at the time were actively trying to decertify the union. Polycon Industries Inc. v. NLRB.

The Eighth Circuit U.S. Court of Appeals ruled that an arbitrator went beyond his authority when he suggested a remedy that effectively rewrote the collective bargaining agreement between a hospital and a union. The arbitrator’s remedy created a metric for evaluating patient care to determine whether to grant workers time off.Minn. Nurses Ass'n v. North Mem'l Health Care.

The D.C. Circuit upheld a Board ruling finding that even if a union campaign flier misrepresented the voting intentions of some Florida school bus drivers, it did not require setting aside the union’s secret-ballot election victory. The court found that the NLRB’s decision was based on a longstanding position that the Board will not probe the truth of campaign rhetoric unless the use of forgery makes it impossible for employees to recognize partisan statements as campaign propaganda. The court further noted that it would uphold Board’s decisions where they are supported by substantial evidence. Durham Sch. Servs, LP v. NLRB.

The D.C. Circuit affirmed a Board ruling that Noel Canning violated federal labor law by not executing a collective bargaining agreement with its employees. The court rejected Noel Canning’s argument that the Board lacked jurisdiction. The court granted the Board’s cross-application for enforcement of the Board’s 2014 decision.Noel Canning v. NLRB.

The D.C. Circuit held that the NLRB failed to properly apply its own precedent when the Board certified a union’s election victory. The company, in the case, had objected to the union’s election victory, citing threats by employees to other employees if the LIUNA Local 1310 did not win an election. The Board said the employees’ comments were made in a joking and casual manner, and it certified the election. The D.C. Circuit found that the NLRB applied an objective standard and that the comments were threatening and warranted, setting aside the election. ManorCare of Kingston PA.

The D.C. Circuit held that the NLRB had the authority to order a variety of remedies for serious unfair labor practices, but could not order the employer to reimburse the NLRB and a labor union for litigation expenses incurred in a Board proceeding. The court said that the NLRB does not have the authority to order attorneys’ fees payments, noting that nothing in Section 10(c) grants the Board punitive powers. HTH Corp. v. NLRB.

The D.C. Circuit upheld the NLRB’s policy requiring employers to respond in a timely fashion to a union’s request for presumptively relevant information. Although the court rejected the company’s challenge of the policy, it remanded the case for further proceedings on whether the information the union had requested was presumptively relevant. IronTiger Logistics, Inc. v. NLRB.

A Florida appeals court found that the NLRA did not preempt Walmart’s trespassing action in state court. The court found that Walmart’s state law claim fell under an exception to NLRA preemption established in a 1978 Supreme Court case, because the claim is not the same as one the company could have brought – and briefly did bring   – before the NLRB. Walmart initially filed an unfair labor practice claim with the NLRB on behalf of its workers, claiming that the UFCW had violated its employees’ rights under the NLRA not to participate in concerted actions. The retailer then withdrew those claims and filed several suits in state courts seeking injunctions against future trespasses and nuisances by the UFCW. An appellate court in Washington ruled that WalMart's claims are preempted, while other cases in Arkansas, California, Maryland, and Texas are still pending. The Florida appellate court noted that the company’s NLRB claims focused on violations of its employees’ rights to refrain from participating in a concerted action, whereas the state court suits are limited to the question of whether the union's action infringed upon the general easement the store provided to the public.United Food and Commercial Workers International Union et al v. Wal-Mart Stores, Inc.

A Wisconsin Court of Appeal stayed a state court judge’s order that struck down the state’s “right-to-work” law, which bars labor contracts from requiring private-sector workers to pay union dues. The lower court, siding with the unions, found the “right-to-work” statute unconstitutional. The court of appeals stayed the lower court’s order, noting the lack of harm to either party, the presumption of constitutionality, the preference to maintain the status quo, and the state’s sufficient likelihood of success on appeal. Machinist Lodge 1061 et al. v. State of Wisconsin et al.

The NLRB found two of T-Mobile USA Inc.’s work rules in violation of the NLRA. The first rule required that employees to “maintain a positive environment in a manner conducive to effective working relationships.” The Board held that NLRA protected activities such as union organizing often include “less-than-‘positive’ statements” about employment terms and conditions. Because employees could have reasonably understood the rule to limit their right to engage in these activities – according to the NLRB – the rule was unlawfully overbroad. The Board also found a second rule that barred employees from recording “people or confidential information” unlawful. The Board noted that recording workplace conditions or events can be protected activities, and T-Mobile failed to exclude permitted activities. T-Mobile USA, Inc.

The NLRB concluded that a transfer agreement between Xerox Corp. and a union did not violate Section 8(e) of the NLRA, because Section 8(e), which bans employer-union agreements that require the employer to stop doing business with any other person, does not encompass “the sale or transfer of a business.” The agreement required that if Xerox were to transfer ownership by sale, lease, or otherwise, the new owner would assume Xerox’s obligations under the collective bargaining agreement; otherwise, there would be no transfer of business. The Board determined the successorship clause was lawful. Rochester Reg'l Joint Bd. Local 14A (Xerox Corp.).

The NLRB ordered the El Super grocery chain to bargain in good faith with several UFCW locals. The order also required El Super to give certain data to the UFCW that it had requested. The order came in the midst of a UFCW boycott of El Super stores that began last December, and another NLRB order in April requiring El Super to pay $363,000 in back wages. Bodega Latina Corp.

The NLRB held that successor employers Adams & Associates, Inc. and McConnell, Jones, Lanier & Murphy LLP violated federal labor law by unlawfully changing employment conditions without bargaining. Adams and McConnell made a successful bid to operate a Sacramento Job Corps center, previously managed by Horizons Youth Services, LLC. Horizon advisors were represented by AFT Local 4986, which requested recognition and bargaining. The Board found that Adams unlawfully disregarded the demand and hired the employees under different terms and conditions. Adams & Associates, Inc.

The NLRB found that a janitorial services firm’s refusal to hire certain workers was based on the workers’ union membership in violation of federal labor law. The janitorial firm took over contracts at buildings that two companies, with collective bargaining agreements with the SEIU, had previously serviced. The new firm did not hire the previous SEIU employees and did not recognize the SEIU. In finding that the firm did not hire workers because of their union membership, the Board relied on statements from rejected SEIU applicants and the firm’s refusal to hire applicants wearing union T-shirts. E. Essential Servs. Inc.

A Board ALJ found that a casino’s rule banning non-business communication over work email was unlawful under the NLRA. A previous Board decision established the presumptive right for employees to use employer email during non-work time. Citing that holding, the ALJ found that a blanket ban on non-business emails was overbroad because it might prevent employees from discussing working conditions. Caesars Entertainment Corp. d/b/a Rio All-Suites Hotel and Casino and International Union of Painters and Allied trades, District Council 15, Local 159, AFL-CIO.

The NLRB found that a hospital’s rule banning “offensive” conduct toward patients and employees was overbroad and that it violated the NLRA. The Board noted that the rule did not define “offensive” and was ambiguous. The Board also found that the rule provided little context to help employees determine that “offensive” does not include NLRA protected activities. The Board stated that the hospital’s rule did not include a “list of descriptive language that would help employees interpret what types of ‘offensive’ conduct the rule is targeting.” Valley Health Sys.

The NLRB found that UPS Supply Chain Solutions changed health benefits for warehouse workers without negotiating with their newly organized union in violation of federal labor law. The Board rejected arguments that the changes were just a continuation of the status quo. The Board ruled that UPS Supply had to reverse the changes to its health plan at the union’s request, and reimburse employees for any additional expenses they incurred. UPS Supply Chain Solutions.

The Board invalidated a union election loss where it found that an employer threw away union leaflets left in the company break room during the “critical period” before voting, but after the filing of an election petition. The Board set aside the loss even though the supervisors threw away the material merely to accelerate a break room cleanup. Intertape Polymer Corp.

An NLRB Acting Regional Director determined the agency had jurisdiction over a Catholic university where the university’s faculty did not perform in an “explicitly religious role.” However, he further found that the faculty in the proposed bargaining unit controlled academic programs and had power over other operations. Therefore, those employees were managerial and not protected under the NLRA. As a result, the election petition was dismissed. Marywood Univ.

In a memorandum to NLRB regional office leaders across the country, the NLRB’s General Counsel told the office leaders to argue for a new rule that restricts an employer’s ability to remove union recognition at its workplace. Currently, employers can withdraw union recognition if it presents objective evidence that the majority of workers do not support the union. The proposed rule would allow the employer to withdraw the union only through a NLRB election.

A federal district court issued a temporary restraining order and subsequent preliminary injunction preventing CWA members from picketing outside several hotels in New York. The injunction will be in effect until the NLRB determines whether the CWA’s conduct constituted an unlawful secondary boycott. The hotels house temporary Verizon workers replacing the thousands of Verizon workers that had been out on strike. Paulsen v. Communications Workers.

An Illinois federal judge held that home health care workers, who receive state funding, were required to go through the SEIU to discuss work issues. The workers argued that requiring SEIU representation violated their First Amendment rights. However, the court noted that “[t]he Supreme Court may revisit its precedents in this area, but until it does, plaintiffs’ theory runs counter to the established principle that a state does not infringe on associational rights by requiring the type of exclusive representation at issue here.” Hill et al. v. Service Employees National Union et al.

A federal court in Alabama ruled that the NLRB was not justified in pursuing an injunction against a nursing home and awarded the nursing home $46,015 in attorneys’ fees. The NLRB had filed unfair labor practices charges, commenced administrative proceedings, and filed a Section 10(j) petition for injunction. The federal court denied the petition, finding that the NLRB failed to make a persuasive case based on specific evidence.Harrell v. Ridgewood Health Care Ctr., Inc.

A split NLRB held that a trucking executive’s “opinion” that a major customer might pull its business if drivers unionized was an unlawful threat. The case arose out of a IBT local’s drive to organize Hogan Transport, Inc.’s drivers at the a New York facility. The NLRB ALJ found that the company’s violations precluded a fair election and warranted entry of an order that the company recognize and bargain with Local 294. Hogan Transports, Inc.

The U.S. Treasury Department refused to approve the Central States Pension Fund’s rescue proposal stating that the plan violated federal law. The proposal sought to reduce participant and retiree benefits to prevent insolvency. The Treasury found that the proposal failed to show that it would prevent insolvency of the Teamsters pension fund, and that the proposed benefit reductions were not equitable.

Ten states requested to intervene in a federal lawsuit objecting to the DOL’s new “persuader” rule. The states claim that they “have a direct, substantial, and legally protectable interest in regulating the practice of law within their borders.” The states argued that the rule would require lawyers within their states to “disclose a wealth of confidential client information.” See our client briefing, DOL Issues Final Persuader Rule. Nat'l Fed'n of Indep. Bus. v. Perez.