Seattle University has asked the NLRB to review a regional director’s order to reopen ballots cast by contingent faculty in a representation election, arguing that the Board’s recently adopted Pacific Lutheran University test was wrongly applied by the regional director and that the Board should reconsider its test. In Pacific Lutheran, the Board ruled 3­2 that employees of colleges and universities may choose union representation unless the institution shows that: (1) it holds itself out as providing a religious educational environment, and (2) it holds out faculty who seek unionization as performing a specific role in creating or maintaining that religious environment. The NLRB’s Seattle office’s regional director found that the university did satisfy the first part of the test, but found that the university did not hold out applicable faculty members as performing a religious function, and therefore failed to meet the second stage of the test. In its appeal of the order, the university argued that nontenured professors in the proposed bargaining unit “serve a specific role in promoting the university’s religious mission.” Further, the university asked the Board to reconsider the Pacific Lutheran standard, arguing that it “contravenes” the U.S. Supreme Court’s holding in NLRB v. Catholic Bishop of Chicago. The university also argued that the regional director deprived the school of due process by not reopening the record to weigh new evidence that addresses the “specific religious function” test in Pacific Lutheran. Seattle Univ.

The NLRB reversed an Administrative Law Judge’s deferral to an arbitration award finding that Verizon New England Inc. was justified in telling its workers to remove picket signs they placed in windows of their cars parked on company property. The arbitration panel denied union’s grievance of unfair labor practices, holding that the workers waived their right to picket under a “no strike” provision of their contract. The Board majority found that the arbitration award’s conclusions – that the display of signs in employees’ parked vehicles constituted picketing and that the contract’s no­picketing provision – was intended to cover such conduct were not susceptible of an interpretation consistent with the Act. Verizon New England Inc.

The U.S. Court of Appeals for the Fourth Circuit held that a transit agency did not violate an arbitration award ordering it to reinstate two police officers who were fired for alleged misconduct when it terminated the police officers a second time when they were not granted re­certification to serve as police officers in Maryland. The officers lost their authority to conduct police activities when they were initially discharged and were required to apply for recertification after the arbitrator’s decision ordering reinstatement. Maryland declined to recertify them, and the agency terminated the officers a second time. Overturning the district court decision, the Fourth Circuit held that an employer is able to discharge an employee after reinstatement when the basis for the subsequent discharge were not among the facts considered by the arbitrator. Fraternal Order of Police Metro Transit Police Labor Comm., Inc. v. Wash. Metro. Area Transit Authorit.

The U.S. Court of Appeals for the Ninth Circuit, in a 7­4 decision, overturned a lower court’s order granting an injunction because an employer failed to show it made reasonable efforts to settle the underlying dispute as required by the Norris­LaGuardia Act. The district had granted the injunction under the Railway Labor Act (RLA), preventing a threatened strike by aircraft fuelers at Seattle­Tacoma International Airport protesting Aircraft Service International Group’s alleged retaliation against an employee who complained about workplace safety. The Ninth Circuit held that the district court erred in concluding that the RLA’s application to the matter prevented the Norris­LaGuardia Act from also being applicable. Specifically, the circuit court found that Norris­LaGuardia’s “clean hands” provision applies to cases involving unrepresented workers who vote to strike. The Ninth Circuit determined that employers need to make every reasonable effort to resolve disputes with their employees, such as through good faith negotiations, prior to going to court to attempt to preempt employees’ concerted activity through an injunction. Aircraft Serv. Int’l, Inc. v. Working Wash.

A district court in Oregon has ordered a longshore union to pay nearly $60,000 to the NRLB for violating a court order to resume normal operations at the Port of Portland’s container terminal. The district court ruled in December 2014 that the International Longshore and Warehouse Union continued to slow work even after a court order to get back to normal speed. The action is part of the long­running struggle, dating back to 2012, between the union and the port’s terminal operator ICTSI Oregon, which has cost the port in business. National Labor Relations Board Region 19 v. International Longshore and Warehouse Union et al.

Speaking at a meeting of the American Bar Association’s Railway and Airline Labor Law Committee, Harry Hoglander, a National Mediation Board member, stated that the test for Railway Labor Act jurisdiction should be whether a contractor’s employees act as “agents” of the airline, rather than whether they are employees in a split decision issued in October 2014, all three members of the NMB disagreed on the definition of what constitutes sufficient control by an airline over a contractor, such as baggage handlers and ramp workers, to make it a “derivative carrier” subject to the RLA. There the NMB majority found that the employees of contractors employed by Alaska Airlines’ contractor Menzies Aviation Inc., were not subject to RLA jurisdiction, even though contractor’s employees at other airports had been found to be so covered.

The NLRB reinstated representation petitions from two UAW affiliates – the Graduate Workers of Columbia University and the Student Employees at the New School – to represent graduate assistants at Columbia University and The New School by remanding both cases back to the regional director, who had originally dismissed the petitions. The NLRB held that the UAW had raised “substantial issues warranting review.” The UAW had argued that the NLRB should overturn its Brown University decision, which denied collective bargaining rights to university graduate assistants on the basis that they had an academic, as opposed to employment, relationship with the school. New Sch.; Columbia Univ.

An NLRB ALJ held that a sign language interpreting company’s email policy violated the rights of employees as outlined in a 2014 Board decision, Purple Communications, Inc. In that decision, the NLRB held 3­2 that employees who already have access to the company’s email system must be allowed to use the system for union related activity or concerted activity protected by the NLRA. Under the ruling, employers are not required to provide employees with emails solely for this purposes. Further, the onus is on employers to justify a total ban on non­work related use of company email, and can do so by showing there are “special circumstances,” which make the ban necessary to maintain discipline and/or production. Here, however, the ALJ found Purple Communications did not submit additional evidence showing that it had “special circumstances,” which justified limitations on employee e­mail use. Purple Commc’ns, Inc.

An NLRB ALJ held that Latino Express Inc.’s company rules, as set forth in its employee handbook, which banned activities that would harm the operations or reputation of the company were overly broad and unlawful. The judge ruled against the bus company even though the company withdrew the rule almost one year ago, finding that the company failed to properly repudiate the rule and take remedial measures. The judge reasoned that because the rules were in place for almost two years, “their silent withdrawal [was] untimely.” Latino Express Inc.

An NLRB ALJ ruled that a Nevada hospital system’s policy, which required employees to speak English at all times violated federal labor law because it could prevent workers from discussing the terms and conditions of their employment. The hospital’s policy provided that employees had to speak English only “when conducting business with each other,” around patients when they are “present or in close proximity,” as well as when employees are “on duty between staff, patients, visitors [and/or] customers” unless “interpretation or translation is requested or required.” The ALJ noted that this was a case of first impression, and held that the rule prevented employees from freely discussing their working conditions because it was “vague as to time and location.” The judge also held that the rule did not pass muster under a “business necessity” standard because it extended to non­patient areas as well as communications between employees amongst themselves. The ALJ also found that the hospital’s rule against negative speech against other workers and the hospital unlawfully violated the law. However, the judge did not find a similar provision banning negative speech about patients to be unlawful. Additionally, the judge found that the hospital’s confidentiality policy was unlawful under Section 8(a)(1) of the NLRA because it was too vague, but upheld the hospital’s policy requiring employees to sign an alternative resolution for conflicts agreement. Valley Health Sys. LLC.

An NLRB ALJ found that T­Mobile USA Inc. violated Section 8(a)(1) of the NLRA by maintaining a policy which restricted, or could be interpreted as restricting, workers from discussing the terms and conditions of their employment. The policy in question was a statement of purpose in T­Mobile’s employee handbook which provided “t]his Handbook is a confidential and proprietary Company document, and must not be disclosed to or used by any third party without the prior written consent of the Company.” The ALJ found the provision broadly written and that “it would chill employees in the exercise of their Section 7 rights.” However, the judge upheld T­ Mobile’s company policy which prohibits workers from using “photographic, audio, video, or any other recording devices in the workplace without authorization from a manager, the human resources department, or the legal department.” While the NRLB General Counsel argued that this rule was overbroad, the ALJ held that no cases were provided which made recording in the workplace a protected right. T­Mobile USA, Inc.

Overturning an ALJ’s decision, a three­member NLRB panel ruled 2­1 that Howard Industries Inc. unlawfully threatened a union representative with suspension when he read a supervisor’s notes out load during his representation of a worker at an investigatory interview. The worker was being questioned about violating a work rule when his union representative began reading his notes out loud. The supervisor conducting the interview then told the union representative to close the notebook. When the union representative refused, the supervisor threatened discipline. The NLRB found that the union representative’s conduct during the interview was “protected under the act” and that the supervisor’s “threat to discipline him was therefore unlawful.” Howard Industries Inc.

An NLRB ALJ ordered the Teamsters Local 210 to stop serving as the sole collective bargaining representative of custodial employees at New York’s John F. Kennedy Airport, after it found that the union did not have support from a majority of the Terminal 2 employees it sought to represent. The case stems from complaints brought by two employees of ISS Facility Services Inc., which contracts with Delta Airlines to clean Terminals 2 and 4 of the airport. The ALJ ordered the union to cease and desist from threatening employees with termination if they did not pay union dues and other unspecified consequences for complaining to the NLRB, and also ordered ISS to refrain from recognizing its agreement with Teamsters Local 210 on the ground that the union did not “represent a majority of those employees.” ISS Facility Services Inc.

The NLRB held that Healthbridge Management LLC illegally fired one of its employees who led a “walk­in”. Patrick Atkinson, a nursing home worker, entered the administrator’s office, and along with 15 employees stood against a wall, and expressed concern that some employees had been suspended. The Board found that Atkinson’s comments to the administrator were “extremely mild” and rejected the employer’s position that Atkinson’s actions were outside protection of federal labor law. The Board applied the four factor standard, from Atlantic Steel Co., in determining whether an employee’s conduct is so egregious as to lose the Act’s protection:

(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was provoked by the employer’s unfair labor practices. Although the Board found that Atkinson’s outburst was not provoked by the employer’s unfair labor practices, it found that that the other three factors supported a finding that Atkinson’s “walk­in” was protected by the NLRA. The Board ordered reinstatement with back pay. Healthbridge Management LLC.

A Wisconsin county circuit court judge voided a series of bargaining agreements between the Kenosha Unified School District and three of its unions finding the contracts included provisions, including fair­share union dues requirements, unlawful under 2011 Wisconsin law, “Act 10”. The court found that under Act 10 the public school employees in the Kenosha district cannot be forced to pay union dues to receive or maintain their job. Lacroix v. Kenosha Unified Sch. Dist.

A federal district court in Rhode Island rejected requests for issuance of a temporary restraining order to prevent union­represented employees of a hospital from beginning a concerted refusal to work overtime in response to the hospital’s announcement that it was planning layoffs. The court was not moved by the hospital’s argument that it would suffer irreparable harm as a result of the employees’ refusal to work overtime, reasoning that the hospital had diverted patients to other facilities in the past during labor disputes. The judge also noted that the hospital could hire temporary nurses through staffing agencies, among other alternatives. New England Health Care Emps. Union, Dist. 1199 v. Women & Infants Hosp.

The NLRB has ordered a New York City bakery to reinstate several undocumented immigrants it fired over a decade ago after the employees raised concerns about a host of abusive conditions at the bakery, including a lack of overtime pay and harassment by a supervisor, as long as they can show they are now allowed to work in the U.S. The Board determined, under Supreme Court precedent from 2002, that it was blocked from issuing back pay to the workers because of their legal status at the time they were fired. However, pursuant to another Supreme Court ruling from 1984, the Board determined that conditional reinstatement was an appropriate measure in the context of immigration­related cases. The NLRB’s reinstatement order is conditioned on the immigrants providing the bakery with a valid I­9 form and appropriate documentation of their legal status within a reasonable time. Mezonos Maven Bakery Inc.

NLRB General Counsel, Richard Griffin, released a lengthy report, GC 15­04, addressing recent Board case developments in the context of employee handbook rules. The General Counsel’s insights are intended to provide employers with guidance in maintaining workplace policies that the Board would likely deem compliant with federal labor laws. The two­part report first examines the legality of various types of work rules and policies that are often challenged or otherwise at issue in Board litigation. Second, the report discusses handbook rules from recently settled unfair labor practice charges against Wendy’s International LLC, including discussions of the handbook rules that the Board deemed facially unlawful, as well as the modified “model” policies that were held to be acceptable under the settlement. See our recent client briefing, NLRB GC Releases Guidance on Employer Handbook Rules.