The NLRB overturned long­held precedent and determined that companies may be joint employers of workers if they “share or codetermine those matters governing the essential terms and conditions of employment.” Firms may be joint employers of workers provided by a labor contractor if the firm has the right to control the means or manner of work and the terms of employment, or if it has reserved the right to do so. The majority overturned the previous Board test, which focused on the firm’s actual control over the workers and did not consider the right to control. The Board found that Browning­Ferris Industries of California Inc. was a joint employer of workers provided by Leadpoint Business Services because Browning­Ferris set conditions on hiring, exercised control over productivity standards, and prohibited the payment of wages higher than those paid by Browning­Ferris. The Board’s decision will likely have wide­ranging consequences for employers, and the two dissenting Republican Board members warned that it will “subject countless entities to unprecedented new joint­bargaining obligations…to potential joint liability for unfair labor practices and breaches of collective­bargaining agreements, and to economic protest activity.” Browning­Ferris Indus. of Calif., Inc. For more information, see Winston & Strawn LLP’s briefing on this topic here.

The Michigan Supreme Court ruled, 4­3, that the state’s Civil Service Commission could not require state workers to pay union dues when they opt out of union membership. The UAW filed suit challenging the state’s application of the right to work law to the 35,000 public­sector employees it represented. The state supreme court found that the commission’s power to regulate the conditions of employment does not include authority to tax civil service employees to subsidize the commission’s operations. The relevant authority of taxation and appropriation was legislative, and the agency’s action was unconstitutional. UAW v. Green.

A federal judge in Michigan approved a settlement between a group of unions and state officials in a case challenging the state’s private­sector right to work law. The state officials, including the attorney general, had previously moved to dismiss the suit, arguing against the union’s claim that the right to work law was preempted by the National Labor Relations Act (NLRA). The federal court had previously dismissed some claims, but allowed others to stand. Michigan State AFL­CIO v. Callaghanunion­represented mechanics that they would have to continue working at a different non­union dealership for lower wages and fewer benefits. The NLRB found that the unionized mechanics were distinct from the workforce at the other dealership and that the dealer should have negotiated with the union regarding the effects of the closing. Dodge of Naperville Inc. v. NLRB.

The NLRB ordered a re­tally or new election after a Student Transportation of America Inc. vice­president made a “veiled threat” about the loss of the bargaining unit’s only client due to increased costs before a union election. The NLRB found the statement, that the employer could end its contract with a school district if operations became too costly, was sufficient to overturn election results in a very close election. The 2­1 panel ordered the regional director to add two challenged ballots to the pool and issue a revised tally. If the Teamsters win the revised tally, the regional director is directed to certify the union. If, even with the two challenged ballots, the tally is against representation, the regional director is directed to hold a new election. Student Transportation of America, Inc. and International Brotherhood of Teamsters, Local 115.

The NLRB found that Neiman Marcus Group Inc.’s arbitration agreements, which included class and collective action waivers, violated the NLRA. The NLRB found that employees would reasonably believe that the mandatory arbitration program bars or restricts the right to file NLRB charges and ordered Neiman Marcus to revise the program to eliminate class action waivers. The Neiman Marcus Group Inc.

An NLRB administrative law judge (ALJ) held that T­Mobile USA’s internal investigation confidentiality policy violated the NLRA by prohibiting workers from discussing the conditions of their employment. The policy required employees to maintain the confidentiality of the names of individuals involved in internal investigations and keep communications between themselves and investigators confidential, unless permitted by law. The ALJ found that the caveat “unless permitted by law” and a statement that the policy did not impact employees’ right to discuss the terms and conditions of employment did not save the policy, because employees may not understand the legal phrase “terms and conditions of employment.” The ALJ recommended that the NLRB order T­Mobile to cease and desist from maintaining the confidentiality policy and post a notice. T­Mobile USA Inc.

The NLRB held that an employer’s threat to suspend a call center worker for posting a disciplinary warning in his cubicle violated the NLRA. The employer gave the employee a written warning for failing to follow a manager’s instruction to turn off an electric tablet during a meeting, and the employee reported the warning to his Teamsters steward, laminated the warning, and posted it in his cubicle. A manager told the employee to remove the warning or he would be suspended for three days. The NLRB found that the laminated warning was related to his other communications with employees about the union grievance and thus was protected concerted activity. Two members of the Board also found that the employer promulgated an unlawful rule when it told the employee to remove the posting during a meeting attended by other employee­stewards, who would have understood the order as a warning that other employees should not post disciplinary notices. Central States Se. & Sw. Areas, Health & Welfare and Pension Funds.

The DC Circuit held that Lafe E. Solomon’s appointment as the acting general counsel of the NLRB was invalid once he received a presidential nomination to serve in the position. Solomon was initially appointed as acting general counsel in 2010 by President Obama pursuant to the Federal Vacancies Reform Act (FVRA). The DC Circuit held that Solomon was prohibited by the FVRA from continuing to serve as acting general counsel after January 5, 2011, when President Obama nominated him for a four­year term. The FVRA prohibits an individual from being both the acting officer and presidential nominee for a position unless the individual was the “first assistant” to the office for a period of time or was confirmed by the Senate as the first assistant. Solomon did not satisfy this exception, and the court was not swayed by arguments that this was harmless or that Solomon’s authority was enforceable under the “de facto officer doctrine.” The circuit court further denied enforcement of an NLRB order against an employer because it was based on a complaint issued by Solomon after he was nominated for the position. The court noted that it did not expect its ruling to have broad effect, because there were a limited number of employers who timely raised similar FVRA objections. SW Gen., Inc. v. NLRB.

An NLRB ALJ held that an employee was engaged in protected concerted activity when he warned a co­worker that the co­worker was going to be fired. The employee noticed that the co­worker had not shown up for two shifts and asked a manager about the absences. The manager responded that the co­worker “doesn’t work here anymore,” and the employee called the co­worker and told him he was about to be fired. The ALJ found that the employee hoped the co­worker would contact the manager and take corrective action to keep his job, behavior deemed to be protected activity. The ALJ found that the employer therefore unlawfully discharged the employee, and recommended reinstatement and backpay. Component Bar Prods., Inc.

The Eighth Circuit held that the NLRB misapplied the test applicable to “mixed motive” termination cases when it found an employer wrongfully terminated an employee who allegedly threatened another employee by making a cutting motion across his throat. The court refused to enforce the NLRB’s order, finding that the burden of proving that the employer’s discriminatory animus toward the employee’s protected conduct was a substantial motivating factor in the termination decision was not met. The employer argued that it properly discharged the employee under a zero tolerance workplace violence policy when he made the gesture at a coworker who crossed a strike line. Nicholas Aluminum LLC v. NLRB.

McDonald’s USA LLC’s bid to force the NLRB’s general counsel to provide more specific claims in the complaints issued against McDonald’s and its franchisees failed. The NLRB denied McDonald’s request for permission to appeal an ALJ’s denial of its motion for a bill of particulars or to dismiss the complaint. The NLRB general counsel issued complaints in December alleging that McDonald’s and franchisees were joint employers who violated the rights of workers who engaged in protected activity by protesting working conditions. Board members Philip A. Miscimarra and Harry I. Johnson III partially dissented from the NLRB’s ruling, finding that a bill of particulars was warranted because the allegations that McDonald’s and its franchisees were joint employers were conclusory. McDonald’s USA LLC.

The NLRB declined to assert jurisdiction over review of a regional director’s decision that Northwestern University scholarship football players were employees under federal labor law. The petition, brought by the College Athletes Players Association, was dismissed and the players’ votes in a union election held in April 2014 will not be counted. The NLRB did not determine, however, whether the players qualified as employees, but stated that even if they were, asserting jurisdiction would not make sense because it would not have jurisdiction over players at public universities, including all of Northwestern’s competitors in the Big Ten Conference. Northwestern University.

The DC Circuit affirmed an NLRB ruling, which found that HealthBridge Management LLC, a nursing home operator, violated the NLRA when it banned union fliers and stickers stating that the employer had been “busted” when a regional director issued an unfair labor practice complaint against it. The Board held that the employer interfered with employee rights when it removed fliers from bulletin boards and told employees not to wear the stickers while in patient care areas or when providing patient care. The DC Circuit found the NLRB’s opinion to be within reason and enforced the unfair labor practice order. HealthBridge Mgmt., LLC v. NLRB.

The NLRB held that a security guard firm, a successor employer of unionized employees, lawfully changed pay practices even though it did not bargain with the union about the changes. The employer provided less paid time for employees to obtain weapons, ammunition, and instructions before shifts, and to return the gear after a shift that was provided by the previous employer. The union and general counsel argued that once the firm became the previous employer’s successor, it had an obligation to bargain and refrain from making unilateral changes. However, the NLRB held that a successor employer may set initial terms and conditions of employment without bargaining unless the successor made it “perfectly clear” that it would retain the bargaining unit. After the initial terms were set, the successor must then bargain with the union and refrain from making unilateral changes. The NLRB found that the successor sufficiently advised employees about the change in pay as an initial term. Paragon Sys., Inc.

The NLRB found that an aircraft fueling firm had not made any claim or provided evidence that any airline held meaningful control over its personnel decisions, and upheld the certification of the Teamsters union to represent the employer’s fueling supervisors, dispatchers, and other specified workers at the Newark airport. The employer had challenged the NLRB’s certification of the union, arguing that its operations fell under the jurisdiction of the NMB not the NLRB, pursuant to the RLA. The NLRB disagreed, finding that the NMB looked at whether airlines exercised “meaningful control” over a company’s personnel decisions when determining whether the RLA covered airline support services. Allied Aviation Serv. Co. of N.J.

The NLRB held that a Las Vegas resort violated labor law when it suspended a bellman for one day pending investigation of a guest complaint. Resort managers summoned the employee to a meeting after receiving a complaint that the bellman was rude to a guest. The bellman, represented by UNITE HERE affiliates, requested union representation at the meeting, but a supervisor could not find a union steward. At the meeting, the employer asked the bellman to sign a statement about the interaction with the guest, but he refused to do so without the presence of a union steward. The employer gave him a notice of suspension pending investigation and told him to go home. The next day, the bellman provided a written statement in the presence of a union steward and received an oral warning. The NLRB majority held that once an employee requests a union representative, the employer must either grant the request, discontinue the interview, or offer the employee the choice of meeting without the representative or of no meeting at all. Bellagio, LLC.

The DC Circuit enforced an NLRB decision finding that a Teamsters local operated an unlawful exclusive hiring hall when it refused to refer drivers who were not members of the local, to a television production company. The local and the production company had an agreement under which the local would provide qualified drivers and the company would hire drivers through the union before hiring non­union members. A driver who was a member of a different Teamsters local sought work with the production company, but was rejected and blocked because he was not a member of the local. The union also rejected the driver’s bid to transfer to the local. The court upheld the NLRB’s award of more than $55,000 in backpay. Teamsters Local 509 v. NLRB.

A divided NLRB panel affirmed a regional director decision approving a unit of workers at a commercial printer, rejecting an employer’s argument that the bargaining unit did not include other workers with an overwhelming community of interest. The bargaining unit consisted of hourly pre­press, digital press, offset bindery, digital bindery, and shipping and receiving employees at a facility in Rochester, N.Y. The employer argued that off­set press employees shared common supervision and functional integration with the bargaining unit and should have been included. The majority found that the off­set press employees were in a separate department, worked different hours and shifts, and had different duties that required more skill and training. The dissent argued that the unit was too narrow for bargaining and criticized the Board’s decision in Specialty Healthcare, arguing that it “encourages destabilizing proliferation of fractured units” by placing the burden on the proponent of larger units to show the employees share an “overwhelming community of interest” with the proposed bargaining unit. DPI Secuprint, Inc.

An ALJ found that Laborers’ International Union of North America Local 872 lawfully protested a Las Vegas resort with large banners and inflatable animals, even though the banners were placed in roadways and driveways and partially blocked pedestrians and cars. The union protested one of the subcontractors hired to perform renovation work with 20 foot banners and an inflatable rat, cockroach, pig, and cat, each of which was 18­20 feet high. The ALJ found that although one banner partially blocked a wheelchair ramp and an inflatable rat was placed in a driveway, there was an alternate route to the property and ample room to drive past the rat. The ALJ dismissed the complaint, finding that there was minimal blockage of the resort by the union’s activities and the animals did not directly disrupt the resort’s operations. Laborers Local 872.

The NLRB held that an employer unlawfully implemented a policy change without bargaining when it told employees not to use cell phones while driving. The employer, a chemical firm, unilaterally told drivers who were represented by the Teamsters that they could not talk or text on cell phones while driving. An ALJ had held that the testimony about the policy was confusing, and that it was unclear whether this was a change in existing policy that would require bargaining. The NLRB found that even if the testimony was not clear, the employer’s actions in making the policy effective immediately and conducting individual training sessions suggested that it was a new rule, which required bargaining. Chemical Solvents, Inc.

An NLRB ALJ held that a union violated the NLRA when it gave an employee disciplinary warnings and poor reviews for filing a grievance. The employee was an office worker for Amalgamated Transit Union Local 689, who was represented by Office and Professional Employees Local Union 2 (OPELU). After some of the employee’s duties were taken away by the president of the local, the OPELU filed a grievance. The president told the employee to stop talking about her breaks, gave her a warning letter, and a bad performance review, even though it had been years since she had previously received a review. The ALJ found that the employee engaged in protected conduct, and that the employer violated the NLRA. Amalgamated Transit Union, Local 689.

An NLRB regional director determined that pharmacy workers at a New York Target can vote on representation by the UFCW, even though Target has an agreement to sell its pharmacy units to CVS. The regional director noted that the agreement must be approved by the Federal Trade Commission, and found that the date when Target would no longer employ pharmacy workers was uncertain. The election is scheduled for September 8. Target Corp.

A divided NLRB overruled Bethlehem Steel and held that an employer’s union dues checkoff obligation survives the expiration of a union contract. The NLRB, noting that the rule changes longstanding Board law, said the rule has prospective application only. The majority found that dues checkoff, where the employer deducts dues from employees’ wages and forwards the dues to the union, is a mandatory subject of bargaining because it is a matter related to wages and other terms and conditions of employment. An employer cannot unilaterally decide to stop honoring a dues checkoff provision. Lincoln Lutheran of Racine.

The NLRB held that an employer was a successor employer required to bargain with the union representing the predecessor’s employees even though the successor was required to hire the employees by a New York City ordinance. The NLRB found that the employer made the decision to purchase buildings that employed unionized maintenance technicians and assistants with the knowledge that the ordinance required the purchaser to hire and retain the employees for at least 90 days. The union requested that the purchaser recognize and bargain with the union, but the purchaser refused to do so until after the 90 day period, at which time the purchaser would decide whether to employ the workers permanently. The purchaser discharged three of the union­represented employees, hired four non­union employees, and refused to recognize the union. The NLRB found that the purchaser made the voluntary choice to take over the buildings and hire the employees, and that successor status should not be determined at the end of the 90­day period. GVS Properties, LLC.

A cab company violated the NLRA when it suspended 17 drivers for several days for taking an extended lunch break to join a protest of the local taxicab authority. The drivers also received written warnings for violating company policy by taking more than one hour for lunches, and were asked why they took the extended lunches and for the name of the protest leader. The NLRB held that taking part in the protest was protected activity because the protest was meant to influence cab companies to support the drivers’ quest to have the taxicab authority limit the number of additional taxicab medallions issued. Sun Cab Inc. d/b/a/ Nellis Cab Co.

The NLRB upheld in part an ALJ’s finding that an arbitration agreement was unlawful where it had the practical effect of barring workers from bringing group claims, even where it did not explicitly prohibit class or collective actions. The employee filed a wage and hour class action in state court, which the employer removed to federal court and filed a motion to compel arbitration of the individual claims. The employer also sought dismissal of the class and collective claims. The ALJ found that the employer violated the NLRA by requiring that employees sign the agreement, and by seeking to compel arbitration of the individual claim, and dismissing the collective claims. The NLRB upheld the ALJ’s decision based on application of D.R. Horton, which invalidated arbitration agreements prohibiting class and collective actions. Leslie’s Poolmart Inc.

The NLRB found that an employer violated the NLRA when it denied an employee the right to have a union steward physically present before taking a required drug test, even though the employee was allowed to speak with the union representative by phone. The Board also found that the employee’s termination for refusing to take the test without the steward was unlawful. A manager testified that the employee smelled of marijuana, and was told he would only be allowed to drive a delivery route for the employer beer distributor if he took a drug test. The employee called a union steward, but it was the steward’s day off and he was not able to accompany the employee to the drug test. The employer informed the employee that if he refused to take the test, he would be treated as if he had failed and could be terminated. The employee did not take the drug test and was terminated that day. The NLRB found that the employer insisted on continuing the disciplinary investigation even though the employee insisted on the steward’s physical presence, which was not permitted under Board precedent. The NLRB also found that the steward’s physical presence was necessary so he could determine whether to contest the employer’s contention that the employee smelled of marijuana, the grounds for the drug test. Manhattan Beer Distribs. LLC.

The NLRB found a confidentiality policy that directed witnesses involved in human resources investigations to keep the investigations confidential unlawful. Boeing Co.’s policy stated that witnesses in company investigations could not discuss the case with other employees besides the investigator or union representative. The Board majority further concluded Boeing’s revised policy, which recommended that witnesses keep such matters confidential, was likewise overbroad. According to the majority, the policy infringed on the employees’ right to discuss the terms and conditions of employment and to engage in protected activity. Member Johnson dissented, arguing that the revised policy should have been deemed lawful. Boeing Co.

A split NLRB found that a hospital unlawfully denied nurses union representation at peer review sessions where the nurses reasonably believed that the sessions could lead to discipline. The sessions reviewed cases where the nurses may have “exhibited unprofessional conduct,” and the nurses requested union representation but the hospital denied the request. The Board ordered the hospital to produce information about the peer review sessions and allegations against the nurses. Midwest Div.­MMC, LLC.

UNITE HERE Local 54 was banned from projecting messages on the Trump Taj Mahal in Atlantic City. A New Jersey judge prohibited the union from continuing to project images, symbols, text or words on Trump property. The union is protesting the impending takeover of the Taj Mahal by Larry Icahn, who the union alleges is seeking to eliminate employee benefits in a bankruptcy exit plan. Trump Entm’t Resorts Inc. v. UNITE HERE.