An equally divided U.S. Supreme Court denied California teachers’ petition to rehear their challenge to a Ninth Circuit decision ruling that a fair share agreement requiring nonmembers to pay agency fees for union representation did not violate the teachers’ First Amendment rights of free speech and association. The teachers requested that the Court wait until it had nine members to consider their petition, but the Court declined.Friedrichs v. Cal. Teachers Ass’n, U.S. See also our client briefing, Equally Divided Supreme Court Affirms Ninth Circuit in Public Unions Case.

The U.S. Supreme Court denied, without explanation, two Michigan tribes’ petitions to rehear their challenges to the NLRB’s jurisdiction over their casinos. The U.S. Court of Appeals for the Sixth Circuit upheld a NLRB decision, which found the tribes were not exempt from the National Labor Relations Act (NLRA or Act) based on claims of tribal sovereignty and ordered a tribal casino to cease and desist from various violations of the Act.Little River Band of Ottawa Indians Tribal Government v. NLRB and Soaring Eagle Casino and Resort v. NLRB.

A divided panel of the U.S. Court of Appeals for the First Circuit affirmed a Board decision holding that a Massachusetts Honda dealership’s dress code policy banning union insignia violated Section 8(a)(1).The court agreed that the auto dealer failed to show how the wearing of union insignia, such as a union pin, would “interfere with the general professional environment.” Disagreeing in part, the dissent wrote that the NLRA does not automatically give workers the right to wear union paraphernalia. Boch Imports, Inc. v. NLRB.

The U.S. Court of Appeals for the Third Circuit upheld a Board decision finding a New Jersey nursing home violated the NLRA by terminating four nurses for their participation in a union organizing campaign, questioning employees in a coercive manner, and soliciting employee grievances prior to the union election. The court found that there was substantial evidence to support the Board’s conclusion that the nurses were terminated for their organizing efforts. In granting enforcement of the Board’s order, the Court rejected the nursing home’s contention that the discharges were based on poor performance, stating that the chronology of events “does not bear that out,” and noting that the discipline began after the election, much later than the alleged performance issues.Lightner v. 1621 Route 22 West Operating Co. LLC. In a related action, the court also rejected the nursing home’s argument that the Board’s order was invalid because it was based on a complaint authorized by former NLRB Acting General Counsel Lafe E. Solomon, who according to the nursing home, was not entitled to serve under the Federal Vacancies Reform Act. The court rejected this argument because the nursing home failed to raise it before the Board. The court likewise rejected the nursing home’s argument that Board Chairman Mark Gaston Pearce should have recused himself because of his past involvement with the same union, explaining that Pearce took no part in the Board’s consideration of the case. 1621 Route 22 W. Operating Co., LLC v. NLRB.

The U.S. Court of Appeals for the Fifth Circuit held that the NLRB’s so-called ambush election rules, which among other things, limit the time between the filing of an election petition and restrict parties from litigating certain issues in representation cases, are neither unlawful nor arbitrary. Commerce groups challenged the Board’s adoption of the rules, arguing that they exceeded the Board’s authority, violated employees’ privacy rights, and were arbitrary and capricious. Rejecting all of these challenges, the Fifth Circuit acknowledged the privacy concerns, but concluded the NLRA does not prohibit the disclosure of personal employee information. The court also held that the groups failed to demonstrate that the new rules were arbitrary and capricious under the NLRA, or that the Board acted outside of its statutory authority in enacting the rules. The U.S. District Court for the District of Columbia also recently dismissed challenges against the rule on similar grounds. Associated Builders & Contractors of Tex., Inc. v. NLRB.

The Fifth Circuit affirmed the NLRB’s certification of a unit of workers at a Massachusetts Macy’s store, joining three other Circuits in upholding the Board’s application of its “micro-units” precedent in Specialty Healthcare. UFCW Local 1445 sought to represent just 41 cosmetic and fragrance employees at the Macy’s store in question. The Board certified the petitioned-for unit, holding it was appropriate under Specialty Healthcare, the 2011 ruling in which the Board held that a union’s petitioned-for unit would honored unless the employer showed an “overwhelming community of interests” among excluded workers. In its petition for review, Macy’s argued that all of its sales workers were part of a “homogenous work force” and that dividing the employees into departmental, rather than storewide units, would “wreak havoc in the retail industry.” The court held that Macy’s arguments did not address the fact that the employees in the petitioned-for unit had “distinct interests,” nor were Macy’s arguments supported by any authority holding that business considerations are a legitimate factor in unit determinations. The court also went on to reject Macy’s contention that Specialty Healthcare wrongly ignored long-standing Board precedent, finding that the ruling was a proper “clarification” of Board jurisprudence. Macy’s, Inc. v. NLRB.

The Fifth Circuit summarily reversed an NLRB ruling that class action waivers in a gym chain’s mandatory arbitration agreement were unlawful. The gym argued that the circuit’s prior rulings in D.R. Horton and Murphy Oil were binding. The Fifth Circuit’s ruling appears to continue a circuit split on the issue of mandatory arbitration agreements. 24 Hour Fitness USA Inc. v. NLRB.

The U.S. Court of Appeals for the Seventh Circuit overruled a district judge’s opinion absolving Full Circle, a shipping company, of liability for the pension fund obligations of an entity it recently acquired. Relying on a previous circuit court decision making it easier for pension funds to collect withdrawal penalties from companies that acquire other entities with pension obligations, the court held that Full Circle’s owner was aware that the company it acquired had pension obligations and therefore put him “on notice that that there was a possibility of” liability. Bd. Of Trs. Of Auto. Mechs. Local No. 701 Union & Indus. Pension Fund v. Full Circle Grp., Inc.

The Seventh Circuit held that a grievance award was not binding on an Illinois highway contractor as the grievance was not properly before the joint grievance committee and further held that the contractor’s appeal of the award was not untimely. The court explained that under the Illinois Arbitration Act, a party has 90 days after “delivery of a copy of the award” to challenge an arbitral award and noted that the contractor did not file a challenge until more than four months after receiving notice of the grievance decision. However, the court went on to find that the email from the union to the contractor merely describing the committee decision reflected only a proposed decision and was not a final award and therefore did not start the 90-day clock. William Charles Const. Co. v. Teamsters Local Union 627.

The U.S. Court of Appeals for the Eighth Circuit declined enforce a Board decision finding that an employer’s attempted enforcement of mandatory arbitration agreements violated the NLRA. The court agreed with the Board that employees could reasonably construe the mandatory arbitration agreement, which waived the right to proceed collectively, as restricting their rights to file unfair labor practice charges. The court further held that the Board’s holding was reasonable and consistent with the Act. However, the court held that the Board erred by holding that the company violated the Act when it moved to compel arbitration of a proposed class action suit in accordance with the employee’s arbitration agreement. The court explained that under Eighth Circuit precedent, class action waivers do not run afoul of Section 8(a)(1), and therefore, the company’s attempted enforcement of the waiver could not violate Section 8(a)(1). Cellular Sales of Missouri LLC v. NLRB.

The Eighth Circuit ruled that the NLRB erred in finding that an Iowa hospital committed an unfair labor practice by not providing nurses with an annual raise after the expiration of their collective bargaining agreement. The court explained that although employers are required to maintain the status quo following the expiration of a contract, the parties’ one-year contract, which called for annual three percent raises, was not sufficient in length to establish that automatic raises were the status quo. Finley Hosp. v. NLRB.

The U.S. Court of Appeals for the Eleventh Circuit granted the NLRB’s petition for enforcement of an order finding that a chemical manufacturer violated the Act by inter alia, failing to bargain with the USW at an Alabama-based plant. The company moved operations from a facility in Louisiana to a facility in Alabama, and after the relocation refused to negotiate with the union, stating that its bargaining obligations ceased with the move as the parties’ CBA “narrowly defined” the bargaining relationship to the company, the union, and the Louisiana local. Agreeing with the NLRB, the court held the company’s Alabama operation was a continuation of its Louisiana operation, given that the employees’ functions remained substantially the same, and the Louisiana employees constituted nearly 90 percent of the Alabama workforce. Therefore, the Court held that the company’s obligation to bargain with the union survived relocation. NLRB v. Gaylord Chemical Co. LLC.

The U.S. Court of Appeals for the D.C. Circuit held that an order requiring Illinois nursing homes to reimburse a union for bargaining expenses it incurred stemming from the homes’ unlawful conduct was within the Board’s statutory remedial authority. However, relying on precedent, the court held that the Board could not order the nursing homes to pay its litigation expenses. Camelot Terrance Inc. v. NLRB.

The D.C. Circuit held that a construction and concrete material company did not violate the Act when it moved material hauling work from its construction unit to its concrete unit. The Board had ruled that the company’s decision to move workers’ duties constituted a change in the scope of the bargaining unit, which was impermissible absent union consent. Overturning the Board’s ruling, the court stated that the company’s decision was actually a “transfer of work,” and therefore the company could unilaterally implement the move after bargaining over the proposal to impasse with the union. Aggregate Indus. v. NLRB.

The D.C. Circuit vacated an NLRB order finding that a construction company engaged in unlawful surveillance in violation of the NLRA by permitting management to sit in on a meeting between employees and a carpenters union. The court held that the NLRB’s decision was arbitrary and capricious as it went against Board precedent, which states that the “mere presence” of a management at a meeting between union and company employees is not coercive and therefore does not violate the NLRA. NLRB v. Southwest Regional Council of Carpenters et al.

A split D.C. Circuit granted Verizon’s petition for review of a NLRB order, which overturned an arbitral decision finding that workers had unlawfully picketed. The court held that the Board must defer to arbitration decisions and may only reverse them if the interpretation of the agreement was “palpably wrong” or “clearly repugnant” to the NLRA, and cannot overturn decisions simply because the NLRB would have come to a different interpretation.Verizon New England Inc. v. NLRB.

The D.C. Circuit held that the NMB did not violate the Railway Labor Act (RLA) by declining to order a runoff election after a tie vote resulted in the end of Teamsters representation. Under RLA and NMB procedures, a union may only be certified if it garners a majority of the vote. After the loss, the Teamsters challenged the NMB’s decision not to hold a runoff election, arguing that it was a gross violation of the NLRA. The court explained that the NMB’s decision need only be “permissible” or “reasonable,” and that it was entirely sensible for the NMB to interpret the law to “only require a run-off election when there are more than two options that actually received valid votes.” Int’l Bhd. of Teamsters v. NMB.

A judge for the District of Minnesota rejected an attempt by a collective of law firms to enjoin enactment of the Department of Labor’s controversial Persuader Rule, which among other things, requires the reporting of advice that is exempt from disclosure under the Labor Management Reporting and Disclosure Act. Although the court admitted that parts of the rule may in fact be invalid, the law firms did not show that they would be sufficiently harmed so as to warrant an injunction. Labnet Inc. v. DOL. However, a federal court in the Northern District of Texas reached the opposite conclusion and granted a preliminary injunction to block the implementation of the rule. The court ruled that the challengers – various business groups – will likely prevail in showing that the rule violates statutory and constitutional provisions. Nat’l Fed’n of Independent Bus. v. Perez. See Federal District Court Blocks Persuader Rule.

The Maryland Court of Special Appeals upheld a permanent injunction barring the UFCW from picketing on Wal-Mart property. After a series of UFCW demonstrations on Wal-Mart property, the retail giant filed a lawsuit claiming that the demonstrations constituted trespass under Maryland law. The court granted an order enjoining the union from blocking traffic and store access. Wal-Mart also filed unfair labor practice charges with the NLRB, alleging that the UFCW violated employees’ rights during the demonstrations. On appeal of the injunction, the UFCW claimed that the state court trespass suit was preempted by federal labor law, arguing that the allegations in both actions were “fundamentally the same.” Siding with Wal-Mart and upholding the injunction, the court held that despite the “factual overlap” between the state court and Board proceedings, whether the demonstrators coerced employees – a central issue to the unfair labor practice charge – was not material to resolution of the state trespass claim, and therefore the injunction request would not interfere with the NLRB’s primary jurisdiction.UFCW v. Wal-Mart Stores, Inc.

A California state court judge ruled that SEIU United Healthcare Workers West did not establish that an arbitrator erred in preventing the union from pursuing, supporting, or sponsoring a ballot measure aiming to cap hospital executive salary at $450,000. The court noted that an arbitration award may only be vacated where it was procured by fraud or corruption, the arbitrator exceeded its authority, or where a party is severely prejudiced by arbitral misconduct. The union withdrew the ballot initiative to comply with the court order rather than appeal the ruling. Cal. Hosp. Ass’n v. SEIU United Healthcare Workers W.

A divided NLRB held that a California continuing care facility violated the NLRA when it permanently replaced striking workers and refused to reinstate them when they made an unconditional offer to return to work. Relying on Supreme Court precedent, the NLRB first explained that an employer’s reason for replacing strikers may be “wholly impeached by the showing of an intent to encroach upon protected rights.” Based on this, the Board then interpreted its previous decision in Hot Shoppes, which holds that an employer may permanently replace strikers for any reason unless it was for an independent unlawful purpose, to include an employer’s replacement of strikers with an intent to retaliate or discourage unionization as an independent unlawful purpose. The NLRB then found that the union presented sufficient evidence indicating that the replacement of the strikers was “to teach [them] and the union a lesson” and “avoid any future strikes,” and therefore in violation of the NLRA.

The NLRB overturned its 32-year precedent established in Wells Fargo, holding that employers must continue to bargain with voluntarily-recognized “mixed-guard unions” absent objective evidence that the union has lost majority support. Wells Fargo, which allowed employers to withdraw recognition of a “mixed-guard union” at any time, provided no collective bargaining agreement is in effect. Overruling Wells Fargo, the divided Board stated that the prior decision was an “unwarranted departure” from the general principle that employers are to continue to bargain with a union after voluntary recognition, absent a showing that the union has lost majority support. The majority also explained that Section 9(b)(3) of the NLRA, which bars the Board from certifying mixed-guard unions, should not be construed to “permit an employer to withdraw from a stable collective-bargaining relationship with a mixed-guard union” as it “would undermine a central purpose of the Act.” Although the Board typically applies its new standards to pending matters, it stated its new ruling would not apply retroactively.Loomis Armored US, Inc.

The NLRB upheld an Administrative Law Judge (ALJ) finding that Boeing Co. was obligated to provide the Society of Professional Engineering Employees in Aerospace (SPEEA) with pay data requested by the union. The NLRB agreed that the union demonstrated the relevance of its information requests and violated the Act by refusing to provide the requested information. The NLRB ordered Boeing to turn over the data and admit in a posting that it violated federal labor law. The Boeing Company and Society of Professional Engineering Employees in Aerospace, Affiliated with International Federation of Professional & Technical Engineers, Local 2001.

The Board set aside a representation election and ordered a second election after finding that a Cleveland contracting company violated Section 8(a)(1) of the Act by threatening that the business would close if employees voted in favor of the union. Specifically, the Board held that the company was liable for the threatening comments of a supervisor as he was either the company’s statutory supervisor or the company’s agent with apparent authority to act on the company’s behalf. Ace Heating & Air Conditioning Co.

The NLRB ruled that a Pennsylvania lime mining and production company violated Section 8(a)(5) of the NLRA by failing to disclose information about policy changes in response to union requests. The company had announced that it would introduce changes in various workplace rules, but when the union requested information regarding these decisions, the company refused. Initially, the company stated simply that it was under no obligation to produce the requested information. Later, in litigation, the company stated that it did not have information responsive to the union’s request. Overruling the ALJ and prior precedent (Raley’s Supermarkets), the NLRB found that the company violated its duty to disclose information by delaying informing the union that the requested information did not exist. Graymont PA, Inc.

The NMB held the Norwegian Cabin Crew Association collected enough authorization cards from flight attendants at three airline carriers to warrant a representation election. The carriers had argued that significant hiring and turnover of attendants altered the proposed bargaining unit, but the NMB found that the turnover did not involve more than a majority of the eligible electorate and therefore did not constitute “unusual circumstances” so as to justify changing the cut-off date for determining whether the union satisfied the required showing of interest from a majority of attendants. Norwegian Air Shuttle ASA.

A NLRB Regional Director ordered an election at three Michigan rehabilitation facilities operated by the Salvation Army, holding that the nonprofit’s religious mission did not exempt the facilities from the Board’s jurisdiction. The Regional Director explained that the workers in the petitioned-for unit were hired without regard to religious affiliation and that they performed secular work, such as driving and warehouse duties. A local chapter of the UFCW seeks to represent the proposed bargaining unit, which consists of 100 production assistants and drivers. The Salvation Army and Local 876, United Food and Commercial Workers International Union, ALF-CIO, CLC.

A NLRB Regional Director dismissed a union’s petition to represent a proposed bargaining unit of equipment operators at a mechanical construction contractor, finding that the election would serve no useful purpose because the operators would soon be out of work. The Regional Director explained that Board law permits the dismissal of representation petitions “when a permanent layoff is both imminent and certain.” In this case, the Regional Director noted that the contractor’s planned termination of the workers in three months’ time was sufficiently finite to warrant dismissal of the petition. Rockford Corp.

A NLRB Regional Director refused to process a petition to decertify a union as the exclusive bargaining representative for a unit of drivers at Draper Trucking, a New York-based dump truck company, holding that the proposed single-employer unit was improper as it was part of a previously recognized multiemployer bargaining unit and therefore had to include drivers for five other dump truck companies. Here, although the six trucking companies did not create a formal association, the companies had a history of participating in cooperative negotiating sessions and adopting uniform contracts, evincing an intent to be jointly bound for bargaining purposes. Draper Trucking, LLC.

An NLRB Regional Director denied a union’s petition to hold a representation election concerning staffing agency employees. The union argued that the staffing agency and an environmental abatement company, which contracted the workers, were joint employers. Although the Regional Director dismissed the petition, finding that the workers’ project was soon to be completed, he nonetheless remarked that the two entities were joint employers under Browning-Ferris because the environmental contractor decided the number of workers supplied by the staffing agency, requested specific workers, and had the “ultimate right” to decide who worked at the facility. Progress Environmental LLC et al. and Construction and Master Laborers’ Local 11.

An NLRB ALJ held that an employer violated its duty to bargain in good faith when it failed to notify the union about its decision to enroll in the federal E-Verify program. The ALJ explained that E-Verify enrollment was a term and condition of employment that required prior notification to the union. The ALJ recognized that an employer is not obligated to bargain over new or changed employment terms based on compelling business justifications or other economic exigencies. The ALJ found no such grounds existed with Regard to the E-Verify program.Ruprecht Company.

Relying on D.R. Horton and Murphy Oil, an ALJ found a hotel management company’s maintenance and enforcement of an arbitration agreement to be unlawful. Although the agreement stated that it was voluntary and did not expressly state that signing was required as a condition of employment, the ALJ said that “the word ‘voluntary’ has more than one possible meaning or definition.” The ALJ further stated that the agreement was unlawful even though it did not mention class or collective actions because the company applied the agreement in order to compel individual arbitration of an employee’s class action. Rim Hospitality v. Nelson Chico.

An NLRB ALJ ruled that a food product manufacturer committed unfair labor practices during a union campaign by disciplining three employees for conduct relating to the drive, introducing a new grievance program, and searching for and confiscating union authorization cards. However, the ALJ also held that the company’s conduct was not so egregious as to warrant the imposition of nontraditional remedies. Advance Pierre Foods Inc. and United Food and Commercial Workers Union, Local 75.

An NLRB ALJ held that an airport porter did not engage in protected activity when he refused to handle the bags of a French soccer team because they were “poor” tippers. Therefore, the porter’s employer did not violate the law by terminating him. The ALJ said that the porter’s protest was not a recognized complaint over wages because tips are received as gratuities from customers and are outside of an employer’s control. Trevor Greenidge v. Alstate Maintenance LLC.

An NLRB ALJ ruled that a T-Mobile call center in Wichita, Kan. violated the NLRA by enforcing policies in a manner to hinder union activity. Specifically, the employer prohibited employees from sending mass emails and discussing unions in working areas and restricted employees’ use of social media. T-Mobile USA Inc. and Communications Workers of America, AFL-CIO.

An NLRB ALJ found that a Tampa electric company committed multiple unfair labor practices after workers voted in favor of union representation. The ALJ ordered the company to cease and desist from interrogating employees, promising wage raises and other benefits to encourage employees to abandon unionizing, and eliminating merit raises. Tampa Electric Co. and International Brotherhood of Electrical Workers, AFL-CIO, Local Union 108.