In a 2-1 decision, the United States Court of Appeals for the Sixth Circuit affirmed the NLRB’s ability to enforce federal labor law over a Michigan tribe-owned casino on Indian land when the majority of the employees are not tribe members. The court said that the terms “employer” and “person” as used in the National Labor Relations Act (NLRA) include Native American tribes. The court also reasoned that the tribe had a weak claim to sovereignty because running a casino with non-tribe member employees is an off-reservation business transaction and not a matter of internal Indian affairs. The dissent argued that the default rule is that the tribe should be able to make its own labor code and the NLRB should not interfere without congressional approval.NLRB v. Little River Band of Ottawa Indians Tribal Government. This decision was issued on the same day that the Senate Committee on Indian Affairs passed S. 248, which would prohibit the NLRB from exercising jurisdiction over employers located on Tribal lands. (see Legislation and Politics).


The United States Court of Appeals for the Ninth Circuit vacated a federal district court’s injunction and remanded the case because the district court improperly found that an air transportation company violated the Railway Labor Act (RLA) by changing pilots’ work rules during contract negotiations with the International Brotherhood of Teamsters. The appellate court reasoned that the former employee organization that negotiated the rules was not the pilots’ certified representative and therefore the rules themselves were not a collective bargaining agreement under the RLA. The court also held that the RLA’s requirement of constant rules does not apply during the initial negotiation between two parties. Teamsters Local 1224 v. Allegiant Air, LLC.


The United States Court of Appeals for the District of Columbia affirmed an NLRB holding that an employer-hotel impermissibly suspended 77 employees for striking on the employer’s premises. The NLRB analyzed the case under Quietflex Manufacturing Company with the ultimate analysis turning on the facts that the employees were not interfering with other employees doing their work and that the employer did not provide an alternate grievance procedure. Fortuna Enters., LP v. NLRB.


The United States Court of Appeals for the Fifth Circuit declined an employer’s request for an en banc review of the NLRB’s decision in Murphy Oil USA, Inc., where the NLRB affirmed its holding in D.R. Horton that making workers agree to individual arbitration of all workplace disputes as a condition of employment violates the NLRA. The NLRB reached this decision even after the Fifth Circuit had overruled the Board’s holding in D.R. Horton. Murphy Oil USA, Inc. v. NLRB.


The United States Court of Appeals for the Eighth Circuit found that the NLRB had sufficient evidence to support its conclusion that a beef processor impermissibly fired three employees for planning a strike, but held the NLRB erred in finding that supervisors made unlawful coercive remarks. With regard to the latter, the supervisors asked one of the employees “what” he wanted out of the work stoppage, and told the other two employees that the company knew about the employees’ participation in  the protected activity. The court reasoned that the remarks were lawful because an employer is allowed to attempt to exchange views with an employee within reason. In addition, the employee was immediately fired after questioning, so the questioning itself did not prevent him from exercising his NLRA rights. Ultimately, the court found the termination unlawful.Greater Omaha Packing Co. v. NLRB.


A district court for the Western District of Texas dismissed a coalition of Texas business groups’ motion for expedited summary judgment to enjoin the enforcement of the NLRB’s new election rules, which require the non-petitioning parties in a proceeding to prepare a statement of position before the NLRB opens a pre-election hearing, and restrict the range of issues that should be discussed at pre-election hearings. The Texas coalition argued that the new rules impermissibly restrict an employer’s right to litigate initial issues before union election. The court held that the NLRB has broad authority to enact rules governing union elections, and that there was no evidence to support the coalition’s claim that the NLRB’s election rule changes favored organized labor. Associated Builders & Contractors of Tex., Inc. v. NLRB.


The NLRB affirmed an Administrative Law Judge’s (ALJ) ruling that an employer could not prohibit its employees from wearing union buttons and stickers, or refuse to let employees work unless the employees removed such buttons or stickers because those actions violated Section 8(a)(1) of the NLRA. During the employer’s negotiations with the union regarding a new collective bargaining agreement, employees wore buttons to work that said “WTF Where’s the Fairness,” “FTW Fight to Win,” and “Cut the Crap! Not My Healthcare.” The NLRB agreed with the ALJ that the buttons were not so vulgar and offensive to lose the employees protection under the Act. Also, the NLRB found that other buttons, which read “No on Prop 32,” were not purely political or remotely connected to the concerns of employees to lose protection. Pac. Bell Tel. Co.


In a unanimous decision, the NLRB dismissed an NLRA unfair labor practices complaint against a Chickasaw Nation casino because tribal sovereignty established in a treaty between the Chickasaw Nation and the United States prevented the NLRB from asserting jurisdiction over the charges. Chickasaw Nation d/b/a Winstar World Casino. After this dismissal, the Senate Committee on Indian Affairs passed legislation (S. 248) that would prohibit the NLRB from asserting jurisdiction over businesses owned and operated by tribes (see Legislation and Politics).


In a 2-1 decision, the NLRB affirmed an ALJ’s ruling that an employer involved in providing tank truck transportation unlawfully refused to give union employees a raise in violation of NLRA Sections 8(a)(1) and (3). The NLRB reasoned that the company’s actions suggested anti-union animus because the company decided to selectively offer raises to non-organizing employees as others were making an effort to organize to increase wages. The dissent argued that the complaint should have been dismissed because the employees did not have sufficient evidence of anti-union animus since there was no alleged coercive conduct independent of the timing of the raises. KAG-West, LLC.


In a 2-1 decision, the NLRB held that a bottling company impermissibly fired and suspended workers for striking because the worker’s actions were protected by the NLRA, even though the strike was not solicited by their union. The NLRB reasoned that the employee’s actions were protected because the purpose of the strike was consistent with the substantive demands that the union was making from the company at that time. The dissent argued that the strike was not protected under the NLRA because it was inconsistent with the union’s choice not to strike and undermined the legitimate union authority. CC 1 LP d/b/a Coca Cola Puerto Rico Bottlers.


In a 2-1 ruling, the NLRB affirmed an ALJ’s finding that a hotel employee handbook rule was unlawful because it vaguely prevented employees from having a “conflict of interest” with the hotel in violation of Section 8(a)(1) of the NLRA. The NLRB reasoned that the rule was overbroad because it could be interpreted to preclude the employees from participating in protected union activity. Remington Lodging & Hospitality, LLC.


In a unanimous decision, the NLRB affirmed an ALJ’s holding that a disposable dialysis products maker lawfully fired an employee who anonymously wrote inappropriate pro-union comments on a union newsletter, because he later lied during an investigation with regard to the comments. In the midst of a union decertification election, the worker had written vulgar and threatening comments on three union newsletters that were in the employee break room. Female workers filed complaints about the comments and the company launched an investigation. The worker was questioned in relation to the investigation and denied involvement, but was later fired when it was revealed that he was the author. The NLRB reasoned that the employer met its burden to show that it could have fired the employee for lying even without considering the comments that he made. Fresenius USA Manufacturing Inc. See our client briefing, NLRB Reconsideration Finds Discharge for Dishonesty in Investigation Lawful.


In a 2-1 decision, the NLRB held that a nuclear power plant unlawfully fired two security force lieutenants because they were employees participating in protected concerted activity under the NLRA, rather than unprotected supervisors. The NLRB reasoned that the employer did not meet its burden to prove that the workers were supervisors because it solely relied on one project manager’s vague testimony that the lieutenants could exercise discretion and independent judgment in discipline, but failed to describe what procedures, protocols, criteria, or other factors governed the lieutenants’ disciplinary actions. The dissent argued that the majority applied too high a standard of proof, and that the workers should have been classified as supervisors because they were given the authority to fire workers. G4S Regulated Sec. Solutions.


In a 2-1 decision, the NLRB held that a hospital illegally prevented employees from discussing internal complaints that were under investigation by the hospital in violation of Section 7 the NLRA, which gives employees the right to discuss discipline and disciplinary investigations. An employee was reprimanded when he complained that his medical instruments were improperly sanitized when a broken pipe prevented access to hot water. The court reasoned that the hospital failed to cite reasonable grounds for believing that the investigation would be compromised without confidentiality, and therefore acted illegally in disciplining the employee. The dissent argued that the request by the employer was lawful and necessary to protect confidentiality during ongoing investigations. Banner Health Sys.


In a 3-2 ruling, the NLRB overruled Anheuser-Busch Inc., under which the Board had held for 30 years that a company did not have to provide its workers’ union access to witness statements from company investigations. The NLRB reasoned that the union should have access to any relevant information related to an investigation unless the employer can show a substantial interest in confidentiality. The NLRB did not see a reason for distinguishing witness statements from any other relevant information. Am. Baptist Homes of the W.


The NLRB held, 2-1, that a rental car company unlawfully failed to deduct union dues from employee paychecks during collective bargaining. The NLRB ordered that the employer pay the union for the amounts that should have been deducted, but that the employer could not recoup the money from its employees. The dissent agreed that the employer should have to pay the union, but argued that there should be some mechanism for the employer to be reimbursed by employees for such amounts to avoid the punitive element that the majority included. Enterprise Leasing Co. of Fla., LLC.


The NLRB held, 2-1, that an employer illegally locked out its employees based on the employer’s post-lockout conduct. The court reasoned that the lockout was illegally motivated because the employer recalled “crossovers” (employees that left the strike) before employees that fully participated in the strike. The dissent argued that the majority should not have considered the post-lockout events in determining the lawfulness of the lockout, and instead should have showed that there was illegal motivation when the lockout was established.Dresser-Rand Co.


An NLRB ALJ ruled that a school impermissibly fired a teacher for emailing his colleagues about to how to handle adverse correspondence with administration about a controversial school play, which constituted protected, concerted activity under Section 7 of the NLRA. Dalton School, Inc.


An NLRB ALJ held that a casino impermissibly maintained and enforced a rule that prohibited employees from distributing literature by threatening disciplinary action and photographing employees that handed out union material at work in violation of Section 8(a)(1) of the NLRA. The ALJ also found that the casino violated Section 8(a)(3) of the NLRA by disciplining an employee for distributing union materials in a non-working area during non-working hours. Casino Pauma.


An NLRB ALJ held that Wal-Mart’s employee dress code was impermissible because it prevented employees from wearing any logos that were large or distracting, which may have stopped some workers from wearing union pins in violation of Section 8(a)(1) of the NLRA. The Wal-Mart policy limited all logos or pins to being smaller than or equal to the size of the employee name tag (2.25 x 3.5 in.), which the ALJ found to conflict with NLRB precedent that allows for union insignias of all shapes and sizes. Wal-Mart Stores Inc. and the Organization United for Respect at Wal-Mart.


An NLRB ALJ held that Terex Corporation, a construction company, engaged in impermissible anti-union behavior by threatening to shut down or move a plant, asking employees about an election, and firing 13 employees that voted in favor of union representation in violation of the NLRA. ASV Inc. a/k/a Terex and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO.


An NLRB ALJ held that a tire company unlawfully terminated a worker for uttering racial remarks while picketing because his statements were not threatening and therefore did not lose protection under the NLRA. When the collective bargaining agreement between the company and the union employees expired, the company decided to use temporary workers, most of whom were black. One of the union workers made racially charged statements like “Did you bring enough KFC for everyone?” and “I smell fried chicken and watermelon.” The ALJ determined that although the employee used racist and objectionable language, his comments were not violent or threatening and therefore did not strip him of NLRA protection for his picketing activity. Cooper Tire & Rubber Co.


An NLRB ALJ ordered an elder care company to bargain with a union after finding that the employer impermissibly stifled union activity by interrogating pro-unionizing employees, taping union activity, firing pro-union employees, increasing pay of those who agreed to remain anti-union, and threatening to close the facility.Vista Del Sol Heathcare Services Inc. and SEIU-ULTCW.


An NLRB ALJ found that a hotel and convention center unlawfully terminated an employee for posting “selfies” on Facebook that generated negative feedback about the company. The employee was terminated, in part, for violation of a rule which broadly prohibited employee “disloyalty” and defined such “disloyalty” as an employee “disparaging or denigrating the food, beverages, or services of the company, its guests, associates, or supervisors by making or publishing false or malicious statements.” The ALJ determined that the policy could encompass protected union activity, and therefore the termination, based on violation of the work rule, was unlawful. Tinley Park Hotel and Convention Center, LLC.


An NLRB Regional Director dismissed the International Association of Machinists’ unfair labor practice charge alleging Boeing Company violated Section 8(a)(1) because an individual threatened union organizers before a representation election. The Director found that Boeing did not promote anti-union behavior because the individual who threatened the union organizers was not an agent of Boeing or acting on Boeing’s behalf. Boeing Co.


On remand from the NLRB, an NLRB Regional Director found that Duquesne University of the Holy Spirit is subject to the NLRB’s jurisdiction and approved unionization of adjunct faculty at Duquesne. The director said that Duquesne failed to meet the new Pacific Lutheran standard, under which colleges and universities may prevent its faculty from organizing if it shows that: (1) it holds itself out as providing a religious educational environment; and (2) it holds out faculty who seek unionization as performing a specific role in creating or maintaining that religious environment. The regional director reasoned that Duquesne failed to meet the second prong because it did not proffer enough evidence showing that it held out the adjuncts as performing a religious function. Duquesne Univ.


On remand from the NLRB, an NLRB Regional Director held that Saint Xavier University in Chicago, Ill. was subject to NLRB’s jurisdiction under the Pacific Lutheran standard and approved the unionization of housekeeping employees. The Director found that Saint Xavier failed to meet the second prong of Pacific Lutheran with regard to housekeeping employees because the institution never told the housekeepers to meet any religious standards or disseminate the Catholic faith. Saint Xavier Univ.