• The U.S. Court of Appeals for the Third Circuit invalidated President Obama’s intrasession recess appointment of Craig Becker, overturning a ruling against New Vista Nursing and Rehabilitation because Becker was part of the three-member panel that issued the decision. This is now the second decision attacking the President’s recess appointments to the NLRB. The D.C. Circuit previously ruled in Noel Canning that recess appointments for three current NLRB members were invalid. The Third Circuit’s decision invalidates a Board member who is no longer serving, thus expanding the temporal reach of the reasoning used by the D.C. Circuit. New Vista Nursing & Rehabilitation v. NLRB.
  • Forty-five Republican senators filed an amicus curiae brief with the U.S. Supreme Court, urging it to grant review of the D.C. Circuit’s ruling in Noel Canning that President Obama’s recess appointments of three NLRB members were invalid. The NLRB has filed a petition for certiorari asking the Supreme Court to reverse the ruling. The Coalition for a Democratic Workplace has also filed an amicus brief, urging the Supreme Court to review and affirm the ruling. The Supreme Court is expected to consider the petition for review in June.
  • The D.C. Circuit held that the NLRB’s employee rights notice posting rule was inconsistent with employers’ Section 8(c) rights. In August 2011, the NLRB published a rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act (“NLRA”), asserting their Section 6 power to promulgate rules and regulations that are necessary to enforcing the NLRA. Section 8(c) of the NLRA gives employers the right to engage in any speech that is not coercive. The D.C. Circuit found that the notice rule violates Section 8(c) because it limits these rights. National Ass’n of Mfrs. v. NLRB.
  • Judge Robert C. Brack of the U.S. District Court for the District of New Mexico ruled that even if the NLRB currently lacks a quorum of Board members, the agency’s general counsel can still seek injunctive relief to prevent unfair labor practices. Judge Brack denied an employer’s motion to dismiss the NLRB’s petition for an injunction on the grounds that the delegation of authority to seek Section 10(j) relief issued in 2011 was invalid because it was not approved by a quorum of members. Judge Brack found that if this delegation was invalid, the general counsel could rely on similar delegations of authority issued in 2001 and 2002, which were never terminated. Overstreet v. SFTC LLC d/b/a Santa Fe Tortilla Co.
  • The U.S. Court of Appeals for the Sixth Circuit reversed an injunction granted to four unions representing Michigan school employees to bar the enforcement of a newly passed law that prohibits school districts from paying union dues through payroll deductions. The unions claimed the law was blatantly discriminatory and violated their free speech and equal protection rights because it made collecting dues more difficult. The Sixth Circuit ruled the law was facially neutral and emphasized that First Amendment protections do not give unions the right to use government processes to facilitate their speech. Bailey v. Callaghan.
  • The D.C. Circuit reversed the NLRB’s finding that an automobile parts manufacturer violated the NLRA by withdrawing its recognition of UAW Local 660 after a majority of employees signed a decertification petition. The NLRB had ruled that the petition was the result of Tenneco Automotive, Inc.’s illegal conduct, which included refusing to disclose requested information to the union and attempting to regulate protected speech in the workplace. The D.C. Circuit found that Tenneco had committed unfair labor practices, but concluded that there was no causal connection between those unfair labor practices and the petition for decertification. Tenneco Automotive Inc. v. NLRB.
  • The NLRB affirmed an Administrative Law Judge’s (“ALJ”) ruling that a New York city tour guide’s emails and Facebook posts were protected by federal labor law. Specifically, the NLRB found that the comments and emails were a continuation of the employee’s prior organizational activity, of which his employer was aware. The employer, New York Party Shuttle LLC, failed to assign the employee to tours after he discussed his union activities and complained about his employer via email and Facebook postings. The emails were sent to employees of another tour bus company and the Facebook postings were made on a page that was only accessible by invitation and intended for New York tour guides. The company has been ordered to reinstate the tour guide. New York Party Shuttle LLC.
  • In a memorandum to regional offices, the NLRB’s Division of Advice concluded that an employee’s critical and derogatory Facebook comments were not protected under the NLRA. The medical office worker, who was employed by Skinsmart Dermatology, participated in a group conversation on Facebook with current and former employees in which she talked negatively about a current and future supervisor. In a group message, the worker stated that she had told the supervisor to “back the freak off” and also wrote “FIRE ME” and “Make my day.” The conversation was shown to a supervisor and she was fired. The employee filed unfair labor practice charges against Skinsmart for her discharge. The Division of Advice found that her comments were personal griping and not protected activity. Tasker Healthcare Grp. d/b/a Skinsmart Dermatology.
  • The NLRB upheld an ALJ’s decision setting aside union election results at Target Corp. in Valley Stream, New York, but reversed the judge’s ruling on a parking lot policy. According to the NLRB, Target threatened employees with reprisals and a store closing, and these tactics justified nullifying the election results which came out 137 to 85 against UFCW. The ALJ also found that the company’s no-solicitation and parking lot policies violated employees’ rights under the NLRA. The NLRB agreed that the ban on solicitation was invalid, but disagreed with the ALJ’s reading of the parking lot policy, finding that reasonable employees would interpret the policy to be a safety precaution and not an anti-union tactic. Target Corp. and United Food & Commercial Workers Local 1500.
  • The NLRB ruled that mass emails sent on work computers by scientists and engineers at the California Institute of Technology were protected by Section 7 of the NLRA. The university disciplined the employees, stating that the emails, which criticized the university’s background check requirement, violated a policy against using work computers to send spam and political statements. The NLRB found that the speech was protected and that the employer could not avoid NLRA protections by labeling the emails as political. California Institute of Technology Jet Propulsion Laboratory et al.
  • The NLRB ordered the U.S. Postal Service (“USPS”) to release redacted test data to the National Postal Mail Handlers Local 313. The union sought the test data to evaluate issues related to the seniority rights of veterans. The union filed an unfair labor practice charge when the USPS refused to release the records, and the NLRB ruled in 2011 that the USPS was required to release the data. The First Circuit remanded that decision, holding that the NLRB must weigh the employees’ privacy interests with the union’s right to receive the test scores. In this latest ruling, the NLRB held that the test scores of individual employees must not be identified when the data is released. U.S. Postal Service.
  • The NLRB deferred to an arbitrator’s decision to reinstate an employee without back pay after she was allegedly fired for distributing a union flyer. The arbitrator found that the employer had engaged in unfair labor practices, but also found that the employee had misled her supervisor. The NLRB found that the award of reinstatement without back pay was consistent with the NLRA. Shands Jacksonville Med. Ctr. Inc.
  • The NLRB upheld an ALJ’s decision that a union’s removal of a member from a union hiring hall was legal, but disagreed that the union unlawfully limited her future access to the hall. The union called the police on the member for using profanity in a personal altercation with one of the union employees. The union then obtained a trespass notice against the member, preventing her from lawfully returning to the premises without a police escort. The ALJ found the union had a right to remove the disgruntled member but should have acknowledged the member’s apology and removed the restrictions. The NLRB disagreed with part of the finding, ruling that the union had a right to remove the member, but had no duty to remove the restrictions. The NLRB noted that the restrictions did not cause the member to lose pay or benefits and the member never requested that the union remove the restrictions. Laborers’ Int’l Union of N. Am. Local 872.
  • The NLRB upheld an ALJ’s ruling that National Gypsum Co. had appropriately declared an impasse on pension issues before locking out members of the United Steelworkers for six months. However, the NLRB also upheld the ALJ’s finding that National Gypsum acted unlawfully in unilaterally refusing to pay an increase in health insurance premiums and unilaterally changing safety procedures. New NGC Inc. d/b/a National Gypsum Co.
  • The NLRB Division of Appeals denied the appeal of 75 pizza workers who were fired while on strike. In November, an NLRB regional director ruled that the shortening of the period that workers had to reverify their work authorization and the subsequent firing of employees who failed to provide work verification during an audit by the U.S. Immigration and Customs Enforcement (“ICE”) was not retaliatory and was in line with ICE regulations. The general counsel’s office found that the employees did not have sufficient evidence to show that the employer’s actions were retaliatory. Palermo Villa Inc. and BG Staffing.
  • The NLRB’s Division of Advice concluded in a memorandum that the American Water Service Company violated its duty to bargain by settling an employee’s claim without contacting the union. The employee, represented by Utility Workers Local 140, injured her wrist and retained a private attorney to file a workers’ compensation claim. The workers’ compensation claim was settled without notice to the union, and the terms of the settlement included a waiver of the employee’s other claims against the employer. The NLRB’s memorandum stated that the company had unlawfully engaged in direct dealing. Am. Water Serv. Co.
  • An ALJ ruled that ConAgra Foods unlawfully reprimanded employees for discussing unions during work time. The company issued a verbal warning to one employee who had been active in an organizing campaign, and sent other employees a letter prohibiting union discussions during work time, claiming that this was a violation of the anti-solicitation policy. The ALJ ordered the company to rescind the warning and revise the letter, finding that the company violated the employees’ rights to engage in protected speech. ConAgra Foods Inc. v. United Food and Commercial Workers Union Local 75.
  • An ALJ sustained several allegations from a 116-count complaint against Western Refining, Inc. The judge found that the company had overly broad rules in its handbook, threatened workers, and improved wages and benefits in an attempt to thwart Teamsters Local 492’s organizing campaign. Western Refining Wholesale Inc.
  • An ALJ declined to defer to an arbitrator’s ruling that an employee had not been unlawfully fired for refusing to submit to a drug test until he could consult with a union representative. The judge found that though the collective bargaining agreement gave the employer the right to fire an employee for failing to submit to a drug test, the NLRA gives the employee a right to obtain a union representative during an investigatory interview and this right extends to drug testing. Ralphs Grocery.
  • The U.S. Bankruptcy Court for the Eastern District of Missouri ruled that Patriot Coal Corporation may modify its collective bargaining agreements with the United Mine Workers of America, including adjusting wages and benefits to a level consistent with the regional market and eliminating retiree health care for current active employees. Patriot filed for bankruptcy in July 2012. The United Mine Workers plans to appeal the ruling. In re Patriot Coal Corp.