Officers and members of the International Union of Operating Engineers Local 150 brought federal preemption and constitutional challenges against Indiana’s Right to Work Act. The U.S. Court of Appeals for the Seventh Circuit held that the Indiana Right to Work Act was neither preempted by federal law nor violative of the constitution. The court reasoned that the longevity of many similar statutes, “coupled with a lack of disapproval expressed by the Supreme Court,” suggested that Indiana’s Right to Work Law is “within the realm of acceptable law.” The court also reasoned that the law does not violate the Equal Protection clause because “it does not implicate a fundamental right, and it passes the low bar of rational basis review with ease.” Sweeney v. Pence.

The National Labor Relations Board (NLRB or Board) ruled 2-1 that the Hospital of Barstow, Inc.’s changing of a cardiac care and life support training program was a unilateral, material, and substantial change that affected employee compensation. The NLRB ordered the hospital to reimburse the California Nurses Association/National Nurses Organizing Committee for expenses incurred during the six months of contract negations that were “infected” by the hospital’s misconduct. Hospital of Barstow, Inc.

A judge for the Northern District of New York granted a preliminary injunction to the United Steelworkers (USW) against Novelis, a national firm that recycles metal and produces rolled aluminum, to prevent unfair labor practices. The USW contended that Novelis coerced employees during an organizing campaign and maintained unlawful plant rules on solicitation, distribution, and social media use. The judge did not grant a bargaining order as requested by the union finding “[i]t is doubtful that imposing bargaining on Novelis at this juncture is necessary to prevent irreparable harm or to preserve the status quo.” Ley v. Novelis Corp.

An NLRB Administrative Law Judge (ALJ) held that MUSE School CA, a private school in California, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it required its employees to sign confidentiality and nondisclosure agreements blocking them from disclosing information about the school, employees, students, student families, and its celebrity founders. The ALJ reasoned that such agreements prevented employees from engaging in their statutory right to discuss their wages, hours, and employment conditions. The ALJ also ordered MUSE School CA to review its employee agreements “to remove any language that prohibits or may be read to prohibit employees from discussing wages, hours, and other terms and conditions of employment.” MUSE Sch. CA.

The NLRB held (3-2) that UFCW Local 700 complied with the Supreme Court precedent in Communications Workers of America v. Beck when it informed a new employee who worked at a Kroger LP grocery in Indiana that she could either join the union or pay non-member fees for union representation. The NLRB, relying on the three- step framework laid out in California Saw and Knife Works, reached this determination even though the union did not specify the fees and expenses the employee would be responsible to pay if she decided not to become a union member. United Food & Commercial Workers Local 700 (Kroger LP).

The NLRB set aside Teamsters Local 734’s 20-16 loss in a union representation election after it found that a Chicago bakery and delivery company improperly interfered with the election. According to the NLRB, when translating an executive’s remarks into Spanish, in order to communicate with the nearly 80 percent Spanish-

speaking workforce, the payroll administrator told employees that the company would replace employees with “legal workers” or a “legal workforce.” The NLRB reasoned that “[b]y telling non-English-speaking employees that it would replace them with ‘legal’ workers, the Employer communicated that their immigration status would be subjected to scrutiny.” Labriola Baking Co.

The NLRB approved a 2008 ALJ decision finding that CNN America Inc. violated the NLRA when it terminated its relationship with a unionized subcontractor, Team Video Services LLC, in 2003, failed to bargain with the union that represented the employees who worked for Team Video Services LLC, and discriminated in hiring decisions to avoid becoming a successor employer under the NLRA. Team Video Services LLC provided camera crews and other technicians in Washington, D.C. and New York City. CNN claimed it terminated the contract with Team Video Services LLC to create a nimble staff suited to new digital technology. The NLRB called that explanation pretextual and is now requiring CNN to rehire about 100 union workers and pay back wages to about 200 employees who stayed with the network. CNN has filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit. CNN America Inc., et al.

The NLRB found that Gates & Sons Barbeque of Missouri Inc. violated the NLRA when it stopped providing free meals to its workers after seven of them engaged in a one-day strike. The NLRB found that the employer failed to show that its actions were not due to the employees’ participation in the strike. The Board found that “[t]he evidence showed that prior to the strike the respondent did not give employees any indication that the meal benefit was about to be discontinued, or even in danger of being discontinued.” The NLRB required Gates &  Sons to post a notice that it will not discriminate against workers for engaging in protected activity. It also required Gates & Sons to reinstate free meals and compensate those employees who suffered a loss of benefits from the “discriminatory discontinuation of the free employee meal benefit.” Gates & Sons Barbeque of Missouri Inc.

The NLRB reversed an ALJ ruling and held that Dover Energy Inc. violated the NLRA when it warned a shop steward to stop submitting frivolous information requests (i.e., a request for information about the financial relationship between members of the union and the company “for the purpose of future bargaining” and a request seeking employee payroll records). After the shop steward submitted a request, the company asked the union’s president if she had authority to request such information, and each time the president said no. Despite this, the NLRB reasoned that Dover Energy’s warnings to the shop steward “would reasonably be understood to proscribe future protected activity.” The NLRB also noted that whether the shop steward’s requests were protected activity did not need to be determined in this case, but instead, that the inquiry was how she may have interpreted the warning (i.e., to circumscribe future protected activity). Dover Energy Inc. Blackmer Division v. Kaanta.

The NLRB’s Division of Advice issued a memorandum stating that a social media policy requiring employees who identify themselves as employees of a company to disclaim on social media sites that “[t]he views expressed on this web site/blog are mine alone and do not reflect any view of my employer” was lawful. The Division of Advice reasoned that where an individual is identified as an employee of a company, his words might create the impression that he is speaking on behalf of the company, and that the employer has “a legitimate interest in protecting itself against unauthorized postings on its behalf.” U.S. Security Assocs., Inc.

The NLRB’s Division of Advice (Division) released a memorandum stating that SEIU Local 87 did not violate the NLRA when it asked employer ABM to transfer a union employee to a new work location after workers complained that she was rude, intimidating, and disrespectful. The Division reasoned that the union’s decision did not appear to be motivated by animus, and it acted to protect the interests of the union as a whole. The Division stated that the union’s conduct “was rationally linked to its responsibility to effectively represent the bargaining unit as a whole” and was therefore lawful. Serv. Emps. Int’l Union Local 87 (ABM).

The U.S. Court of Appeals for the Ninth Circuit held that Section 303 of the Labor-Management Relations Act does not preempt state law claims related to secondary boycott activity. The case arose out of a lawsuit by Retail Property Trust, a mall owner, against the international union Carpenters and Joiners of America and Local 803 for trespass and nuisance arising out of a protest that violated the mall’s rules for public use of common areas (i.e., protesters must fill out applications in advance and agree to stay within one of two designated common areas and may not make excessive noise, obstruct pedestrian traffic, damage property, use physical force, or use obscene language or gestures. The circuit court reasoned: (1) Section 303 does not always preempt state claims because it does not fully occupy the field of secondary union activity; (2) trespass and nuisance fall under a “longstanding” preemption exemption for conduct that affects “interests so deeply rooted in local feeling and responsibility”; (3) the conduct at issue was at most a “merely peripheral concern of federal labor law”; and (4) the claims concern only the application of time, place, and manner restrictions to raucous and threatening picket activity. Retail Prop. Trust v. Carpenters.

The NLRB held that Purple Communications Inc.’s “no disruptions” policy, which prohibited employees from causing or participating in “a disruption of any kind during working hours on company property,” was unlawful under the NLRA. The Board also set aside the results of two union elections, stating that the “objectionable conduct, considered either in aggregate or separately, could have affected the election results.” The Board reasoned that the policy was too broad and interfered with employee rights to engage in concerted activity and union organizing. Purple Communications Inc. and Communications Workers of America.

Cablevision Systems Corp. filed a defamation lawsuit against the Communications Workers of America Local 1109, District 1, District 1 official Christopher M. Shelton, and former employee Jerome Thompson. The complaint alleges that the defendants maliciously disseminated false and damaging statements about Cablevision. Cablevision and the union are currently deadlocked in negotiations for a new collective bargaining agreement. Cablevision Sys. Corp. v. Commc’ns Workers Dist.