A National Labor Relations Board (NLRB or Board) panel ordered American Medical Response West to give its employees’ union, United Emergency Medical Service Workers, Local 4911, the names of workers the company interviewed before firing a training officer over sexual harassment allegations, holding that the union’s need for the names outweighed any privacy concerns. The panel found that the union needed to interview the witnesses so it could decide whether to file a grievance on the former employee’s behalf, rejecting the contention that the union would harass the workers it spoke to. The panel held that the business presented “no evidence” of a likelihood of retaliatory conduct. American Medical Response West and United Emergency Medical Service Workers, AFSCME Local 4911, AFL-CIO, Case Nos. 32-CA-127259 and 32-CA-149437 (NLRB). 

The U.S. Court of Appeals for the Ninth Circuit held 6-5 that an Alaska Airlines flight attendant did not need to go through the collective bargaining agreement’s arbitration and grievance process to challenge her inability to switch her scheduled leave dates to care for a sick child. Under the airlines’ labor agreement with Flight Attendants-Communications Workers of America, AFL-CIO, minor disputes requiring interpretation of the collective bargaining agreement must be resolved through arbitration, rather than litigation. The employee argued that the labor contract provisions concerning sick leave violated the Washington Family Care Act. The court held that the employee did not need to go through arbitration because the dispute did not concern the meaning of the labor agreement, but whether the terms of the labor agreement violated state law. Alaska Airlines Inc. v. Schurke, 2018 BL 273523 (9th Cir.)

The U.S. Court of Appeals for the D.C. Circuit reversed an NLRB order directing a Washington medical transport business, Advanced Life Systems Inc. (ALS), to reinstate irregular raises and gift-giving after it suspended them when the workers unionized. The court held that the withholding of raises and bonuses was not a punishment because the business did not have a “long-standing practice” of providing those bonuses and raises. The court found that there was inconsistency in the timing and the amount of the raises and bonuses, noting that the company increased workers’ pay at intervals varying from two weeks to two years, and in increments ranging from $0.25 to $2.50 an hour. Advanced Life Systems In. v. NLRB, Case No. 16-1405 (D.C. Cir. 2018).

The D.C. Circuit Court held that a Coca-Cola bottler in Puerto Rico violated a shop steward’s rights by firing him for his alleged role in a work stoppage but may not have illegally fired 86 other employees in a “wildcat” strike (a strike started by one or more union members without union backing). The NLRB held that the strike was protected activity. The Appellate Court held that the Board did not adequately explain its reasons for finding that the strike constituted lawful protected activity and directed the Board to further explain its reasoning. The court affirmed the Board’s finding that the shop steward’s firing was illegal because the company failed to offer an alternative, lawful reason for his termination. CC1 Ltd. P’Ship v. NLRB, 2018 BL 276790, No. 15-1231 (D.C. Cir. 2018).

Citing the Supreme Court’s May ruling in Epic Systems, an NLRB panel reversed a 2016 decision holding that Northrop Grumman violated federal labor law by requiring an employee to pursue an employment grievance through arbitration rather than as a class action in court. Prior to the Epic Systems holding, the NLRB had found that class action waivers violated a worker’s right to work in concert with its fellow employees. Epic Systems held that Section 7 of the National Labor Relations Act (NLRA) does not include the right to bring lawsuits against employers as a class action. In reversing the previous decision, the panel did not address whether a valid arbitration agreement existed. Northrop Grumman Sys. Corp. and Porfiria Vasquez, 366 NLRB No. 147. 

An NLRB administrative law judge (ALJ) ruled that a sign language interpreting company, Purple Communications, Inc. and its parent company, CSDVRS LLC, violated federal labor law, because the company enforced an email policy that restricted company email for union business more harshly for union stewards. The judge found that this violated an Obama-era decision that stated that a company should generally allow work email to be used for union business. The NLRB’s Republican majority has requested a briefing to determine whether that rule should be overturned. The judge also found that the company illegally offered benefits to coerce employees to reject the union, managers unlawfully attempted to limit the role of the union steward acting as Weingarten representatives during investigatory interviews, and stopped deducting dues from wages in May 2016. Purple Communications, et al. and Pacific Media Workers Guild Local 39521, et al., Case No. 21-CA-149635 (NLRB). 

The NLRB unanimously rejected a challenge by graphics printing company, WestRock Services, to ALJ Robert Ringler. Judge Ringler was overseeing an unfair labor practices case brought against the company in connection with a petition to decertify a union representing certain workers at its Chattanooga, Tenn. facility. The company claimed the appointment of ALJ Ringler was constitutionally invalid. The Board rejected this argument ruling that the Board had the authority to appoint all existing ALJs, including Judge Ringler. This ruling comes two months after Supreme Court’s decision in Lucia v. SEC, holding that the SEC’s ALJs are inferior officers who need to be appointed by the President or the head of the agency and are not regular federal employees subject to removal protections. The NLRB distinguished the Lucia decision by stating that, unlike SEC ALJs, the Board’s judges are appointed by the full board who collectively qualify as the “head of department.” WestRock Services, Inc. and Graphic Communications Conference of the Int’l Brotherhood of Teamsters, Local 197-M, Case No. 10-CA-195617 (NLRB).

The NLRB held that University of Pittsburgh Medical hospital cannot prohibit off-duty employees from distributing union literature outside of patient-care areas, affirming the ALJ’s decision. The Board held that such rules are “presumptively invalid,” without addressing the Board’s new Boeing Test, which seeks to balance a rule’s impact on workers’ rights against an employer’s “legitimate justifications associated with the rule.” UPMC Presbyterian Shadyside et al and SEIU Healthcare Pennsylvania, Case Nos. 06-CA-171117 and 06-CA-171123 (NLRB).

The Eighth Circuit Court of Appeals held that a trial court properly dismissed a class action complaint brought against ConAgra Packaged Foods LLC, alleging the company did not pay workers at the Russellville, Ark. plant for time spent donning and doffing protective work gear. The court found that the collective bargaining agreement did not include language about doffing and donning pay and neither the union or the workers had filed a grievance regarding the practice. Because the collective bargaining agreement was silent as to the issue, the key issue would be whether it was “custom or practice” to pay workers for time spent donning and doffing, before the CBA. Lyons, et al. v. Conagra Food Packaged Foods LLC, Case No. 17-3134 (8th Cir. 2018).

An NLRB ALJ ruled that Woodbridge Winery, affiliated with Constellations Brands, violated federal labor law when it barred an employee from wearing a safety vest with the slogan “Cellar Lives Matter,” since it was connected to union activity and was not offensive. The dispute arises from unfair labor practice charged filed by Cannery, Warehouse, Food Processors, Drivers and Helpers, Local Union No. 601, which is affiliated with the International Brotherhood of Teamsters. Constellation Brands US Operations Inc. dba Woodbridge Winery, Case No. 32-CA-186238 and 32-CA-186265 (NLRB). 

The 8th Circuit Court of Appeals upheld the constitutionality of a Minnesota law allowing home care providers to organize, after a group of parents who provide home care services to their disabled children alleged it violated their constitutional rights by forcing them to associate with a union. In upholding the Individual Providers of Direct Support Services Representation Act, the court cited a U.S. Supreme Court’s 1984 decision Minnesota State Board for Community Colleges v. Knight, which ruled that home care providers’ rights had not been violated with a law that allowed them to form their own advocacy groups. The court reasoned that the Act, which considers home care providers “public employees,” does not require a home care provider to join a union, and therefore does not infringe on their rights. The court held “a state cannot compel public employees and home care providers, respectively, to pay fees to a union of which they are not member, but the providers here do not challenge a mandatory fee.” Teresa Bierman, et al. v. Governor Mark Dayton, et al., Case No. 17-1244, (8th Cir. 2018).

U.S. District Judge William Conley in Wisconsin held that the NLRB can pursue a retaliation claim against Menard Inc., on behalf of an independent contractor. The court dismissed Menard’s suit, which sought judgment that the NLRB exceeded its authority in filing an administrative complaint accusing it of illegally retaliating against the owner of the company that provides delivery services to Menard, by terminating his contract after he testified in misclassification case. The court reasoned that the Board acted within its authority, even though the case was brought on behalf of an independent contractor, because the Act has been broadly interpreted “beyond the specific limitations of the definition of ‘employee.’” Additionally, the court reasoned and the company can appeal any outcome it doesn’t like. Menard Inc. v. NLRB, Case No. 3:18-cv-00676 (W.D. Wisc.)

The NLRB held that a Michigan Burger King franchisee violated the NLRA by telling workers they could not discuss striking in support of a $15 minimum wage in its parking lot, holding that the fact that customers drive through or park cars in parking lot does not make it a “selling area.” EYM King of Michigan LLC and Michigan Workers Organizing Committee, Case No. 07-CA-118835 (NLRB).

An NLRB ALJ found that Sears must recognize and bargain with a union representing its backroom associates. The judge found that Sears violated federal labor law by relying on a decertification petition that was circulated before the union had been certified for a year, in refusing to bargain with the United Food and Commercial Workers union. Sears Roebuck and Co. and Local 881 United Food and Commercial Workers, Case No. 13-CA-191829 (NLRB). 

The NLRB ruled 2-1 that a Mercy Hospital manager did not illegally threaten a nursing assistant when she said that the employee would be watched and possibly disciplined if she transferred to Mercy Hospital’s ICU, after she commented on working conditions at a “meet and greet” session. The Board majority found the manager’s comments did not necessarily relate to the nursing assistant’s earlier comments about working conditions in another department and although the nursing assistant declined the ICU position, the hospital didn’t force her to make that choice. Board Member Pearce dissented, stating that the manager’s comments showed the hospital was trying to discourage the nursing assistant to transfer because of her history of engaging in NLRA protected conduct. Mercy Hosp., 2018 BL 299007, 366 NLRB No. 165. 

Michigan Federal Judge Gershwin A. Drain dismissed a proposed class action by autoworkers against Fiat Chrysler and the United Automobile Workers, alleging that the company and the union colluded to sacrifice workers’ interests during collective bargaining. The Judge ruled that the workers have not exhausted internal procedures to address their grievances. The judge found that the former executive’s guilty plea of bribery did not breach the contract in any way, and that the workers’ argument that they cannot follow internal procedures is warrantless, as the guilty parties have been removed. Beverly L. Swanigan, et al. v. FCA US LLC, et al., Case No. 18-cv-10319 (E.D. Mich.)

Washington D.C. Federal Judge Ketanji Brown-Jackson partially granted four motions for summary judgment that unions had filed against the Trump Administration’s executive orders affecting federal employees and their unions. Judge Brown-Jackson ruled that the President abused his authority because parts of the executive orders conflict with the Federal Service Labor-Management Relations Statute (FLMRS), which provides federal workers the right to collectively bargain with the government. The judge struck key provisions of the order, including passages giving the government more power to fire workers and limiting the job terms that agencies must negotiate with. The judge held that several parts of the order violate the FSLMRS’ requirement that federal agencies “bargain” in good faith over certain work terms. AFCE, et al. v. Trump, Case No. 1:18-cv-01261 (D.C. Circ.) 

The NLRB ruled 2-1 that A.S.V. Inc., a maker of Terex Corp. machinery, must reinstate 11 workers with back pay, even though the workers were provided substantial severance payments, agreeing with an ALJ that said the company illegally laid off employees at the Minnesota facility in order to thwart union organizing. The Board held that the severance packages should be disregarded because they were “part and parcel” with company’s scheme to prevent unionization. A.S.V. Inc., 2018 BL 301125, 366 NLRB No. 1. 

The NLRB held that Weyerhaeuser NR Co. had a legal duty to bargain with the local union before changing training procedures and plant rules at a Washington state pulp and paper mill. The company has collective bargaining agreements in place with the Association of Western Pulp and Paper Workers, an affiliate of the Brotherhood of Carpenters, but the Board held the unions did not “clearly and unmistakably” waive their rights to bargain about new training and evaluation processes. Weyerhaeuser NR Co., 2018 BL 303302, 366 NLRB No. 169 (Aug. 22, 2018). 

The 4th Circuit Court of Appeals ruled that a court injunction is not necessary to prevent West Virginia hospitals from bargaining in bad faith with nurse’s union, rejecting a request from the NLRB for a 10(j) injunction. Henderson v. Bluefield Hosp. Co., No. 16-2331 (4th Cir. 2018)

The NLRB held 2-1 that employees who stood and stretched in unison at their cubicles to signal support for their union did not engage in a work “slowdown.” The Board found that Consolidated Communications Holdings, Inc., a Texas telecommunications company, unlawfully disciplined the employee who organized the demonstration. Consolidated Comm’ns Holdings, Inc., 2018 BL 307446, 366 NLRB No. 172.

The NLRB upheld an ALJ’s finding that Erickson Trucking Service Inc. violated the NLRA when it fired six workers represented by the International Union of Operating Engineers. The Board reversed the judge’s finding, however, that the company president violated the NLRA when he said the union’s business rep ran the union “like Hitler” at a June 2016 meeting where he fired three of the workers. The Board ordered the company to reinstate all six employees. Erickson Trucking Service Inc. v. Local 324 IUOE, Case No. 07-CA-178824 (NLRB). 

The NLRB ruled an Illinois food processor violated the Act when it enrolled in the government’s E-Verify program without first bargaining the issue with the union. Ruprecht Company did not bargain with UNITE HERE Local 1 before voluntarily enrolling in the government sponsored web-based system designed to quickly verify the eligibility of employees to work in the United States. Ruprecht Co.

The NLRB ruled 2-1 that a dry wall contractor did not violate the Act when management participated in a meeting conducted by the Carpenters Union to collect union authorization cards from the contractor’s employees. The Board majority reasoned that because the company had a pre-hire agreement with the union, it was not unlawful for company managers to sit in on the authorization card meeting or even express an opinion supporting the union. The NLRA permits construction companies to enter into pre-hire agreements with trade unions before the union has established that a majority of the contractor’s employees desire union representation. Garner/Morrison, LLC