• The D.C. Circuit Court refused to enforce the Board’s order that Chicago-based Erie Brush & Manufacturing Corp. failed to bargain with the SEIU and found instead the parties had reached a lawful impasse after talks broke down on key issues. The circuit court found that the Board’s ruling that additional negotiations could have resulted in agreement was based on “rank speculation” and ignored the record evidence showing that the two sides had become deadlocked. In doing so, the court rejected the Board’s determination that a union request for mediation negated impasse, because the mere mention of mediation does not evidence an increased likelihood of compromise. Erie Brush & Manufacturing Corp. v. NLRB.
  • A New York federal judge rejected the Board’s request for an 10(J) injunction against GVS Properties LLC after finding that the company’s retention of several union-represented workers employed by another firm, which was required by a New York City ordinance, did not render GVS a successor with an obligation to bargain with the union. Because the NYC ordinance required GVS, which took over a unionized firm, to retain service and maintenance employees for at least 90-days, the judge held that such retention did not constitute the type of “hiring” from a predecessor that would support a finding of successorship and impose a bargaining obligation on GVS. Rather, the court found, GVS’ hiring of union-represented employees must be voluntary in order for the bargaining obligation to attach. Paulsen v. GVS Props. LLC.
  • A Pennsylvania federal district court affirmed an arbitrator’s order that grocery store owner Giant Eagle Inc. rescinded raises given to employees without notifying the union (UFCW Local 23) in violation of the parties’ CBA. The court noted that although the arbitration award resulted in some union members’ raises being eliminated, the arbitrator had rationally read the relevant contract provision and that federal law imposes a strong presumption that arbitration awards are enforceable so long as the arbitrator does not “manifestly disregard” the contract and the award “can be rationally derived” from the contract and grievance submitted to the arbitrator. Giant Eagle Inc. v. United Food & Commercial Workers Local 23.
  • An arbitrator has awarded 700-1,000 engineers and technical workers at Boeing’s Palmdale and Edwards Air Base facilities back pay and benefits totaling several million dollars due to Boeing denying them union representation for more than 10 years. The ruling ends a nearly 12-year effort by the Society of Professional Engineering Employees in Aerospace union to re-establish representation of Boeing’s workers and also requires Boeing to pay the union more than $1 million in lost dues and fees. Boeing Co.
  • The NLRB held that an NLRB Regional Director properly postponed action on a petition to withdraw authority of a United Auto Workers (UAW) Local due to a pending unfair labor practice charge against the company, Wellington Industries, Inc. The Board held that the postponement of the deauthorization petition until the unfair labor practice had been remedied was proper because the charges, consisting of failure to provide information and refusal to bargain with the Local’s president present, constituted the type of “serious unfair labor practice” that could cause the filing of the deauthorization petition. In making its decision, the Board majority declined to reconsider its “blocking charge” policy and found that no hearing was necessary to determine whether the un-remedied unfair labor practice charges caused the filing of the deauthorization petition. Wellington Industries, Inc.
  • An NLRB Administrative Law Judge(ALJ) held that 24 Hour Fitness USA committed an unfair labor practice by maintaining and enforcing a mandatory arbitration agreement that contained a class action waiver, even though the agreement contained an “opt-out” provision because, according to the ALJ, the opt-out process places “an unlawful burden on the right of employees to engage in collective action.” The ALJ relied in large part on the Board’s D.R. Horton decision, even though the arbitration agreement in that case did not include an opt-out provision, because “Board precedent establishes that employees may not be required to prospectively trade away their statutory rights.” As part of the Order, the ALJ required 24 Hour Fitness to notify courts and arbitral forums where the arbitration had been invoked and that the company no longer objects to employees participating or initiating class litigation. 24 Hour Fitness USA Inc.
  • An NLRB ALJ held that Dish Network’s policy prohibiting employees from making disparaging comments about the company on social media sites, or engaging in negative electronic discussions on company time was unlawful because a reasonable employee could construe the rules to chill employees’ rights to engage in National Labor Relations Act (NLRA) Section 7 protected activity. For similar reasons, the ALJ also invalidated Dish Network’s policies requiring employees to obtain authorization before speaking to the media or government agencies about the company. The ALJ relied heavily on the Board’s recent decision involving Costco Wholesale Corp.’s electronic posting policy. Dish Network Corp.
  • The U.S. Court of Appeals for the D.C. Circuit rejected a New Mexico acute care facility’s claims that the NLRB unlawfully certified a unit of professional and non-professional hospital employees pursuant to its “wall to wall” health care unit rule. San Miguel Hospital claimed that the rule, approved by the U.S. Supreme Court more than 20-years ago, ran afoul of a NLRA’s provision prohibiting the Board from using the extent to which workers have organized as the controlling factor in unit determination. The circuit court, however, found that the rule merely used the extent to which a union had attempted to organize a unit as a non-controlling factor to be considered in examining the appropriateness of the unit and upheld the Board’s certification of a combined unit that excluded only security guards and physicians. The court also refused to address San Miguel’s claim that the unit members did not share a sufficient “community of interests” because the company failed to raise the issue before the Board. San Miguel Hospital Corp. v. NLRB.
  • The D.C. Circuit Court affirmed a Board decision holding that an employer who engages in unfair labor practices directly related to an employee decertification effort—as opposed to unfair labor practices that do not involve assistance by the employer in the actual decertification petition—presumptively interferes with employees’ rights even without evidence of actual coercive effect. According to the court, the Board correctly applied its precedent in Hearst Corp, which does not require an evidentiary showing of coercive effect, because the decertification petition was supported by employee signatures that the employer had actively solicited in order to oust the union. In doing so, the court rejected the company’s argument that the Board should have applied Master Slack, which would require evidence that the employer’s unlawful conduct actually affected employees’ attitude toward the union, because Master Slack involved unlawful employer conduct that was not directly related to the decertification effort. SFO Good-Nite Inn LLC v. NLRB.
  • Pursuant to Department of Labor (DOL) Secretary’s Orders 2-2012 and 3-2012, DOL Secretary Hilda Solis has given the DOL’s Administrative Review Board authority to review final decisions from DOL’s Office of Labor-Management Standards relating to elections held to remove union officers for misconduct. The statutory and regulatory sections cited in the Orders relate to the Secretary’s authority to call for an election to remove a union official for misconduct if the union’s constitution and by-laws do not provide adequate procedures for removal. A DOL spokesman stated that the changes are procedural in nature and do not give DOL new authority.