• The U.S. Department of Justice and the NLRB filed a petition for review of the U.S. District Court of Appeals for the District of Columbia’s Noel Canning decision to the U.S. Supreme Court. The filings urged the Court to hear the agency’s challenge to the D.C. Circuit’s landmark decision finding that President Obama’s three intra-session NLRB recess appointments were unconstitutional. The Obama administration argued that the circuit court’s decision could significantly curtail the President’s recess appointment power and have unintended consequences beyond the NLRB. [Click here to see our client briefing discussing the Noel Canning decision.]
  • A federal district court in Arizona struck down an Arizona statute that limited picketing, boycotts, and other protest activities by limiting dues checkoffs and political spending. The court found that the Protect Arizona Employee’s Paychecks from Politics Act (S.B. 1365) was unconstitutional because it treated labor unions differently from other organizations that receive payroll deductions for political purposes. The law required employees to give written authorization to their employers to deduct political contributions from their paychecks. The court found that unions have a special burden because the requirement to declare in advance the percentage of contributions to be used for political purposes was an obstacle to free speech. United Food and Commercial Workers Local 99 v. Bennett.
  • The U.S. Court of Appeals for the Third Circuit upheld an NLRB decision finding that Grane Health Care and a related company, both of which had acquired Laural Crest Nursing and Rehabilitation Center’s assets from Cambria County, Pennsylvania, violated Section 8(a)(5) of the National Labor Relations Act (“NLRA” or “Act”) by failing to recognize and bargain with the incumbent union, the Laborers’ International Union of North America. The court found the evidence supported the Board’s decision because the union had been properly recognized by the state before the companies, which constituted a single employer, took over. The circuit court also agreed that the substantial evidence established that the employer engaged in unlawful discrimination by failing to hire the union-affiliated employees. Grane Health Care v. NLRB.
  • The U.S. District Court for the Northern District of Illinois granted summary judgment in favor of UNITE HERE Local 1 and against the Congress Plaza Hotel in Chicago, holding that the union did not engage in unlawful coercion or threatening conduct in violation of Section 303 of the Labor-Management Relations Act. The hotel had sued the union, claiming it violated the secondary boycott provisions of NLRA Section 8(b)(4)(ii)(B) by coercing or threatening nine organizations or businesses to dissuade them from holding conventions or booking rooms at the hotel. However, the court held the union’s conduct, which included leafleting, emailing, and calling various hotel patrons during a protracted strike and bargaining dispute, did not rise to the level of coercion or threats to third-party neutrals, but instead was merely harassing and burdensome to the hotel. In reaching this decision, the court observed that ultimately, that none of the union’s actions caused economic loss to any of the secondary organizations. 520 S. Michigan Ave. Assoc. Ltd. d/b/a Congress Plaza Hotel & Convention Ctr. v. UNITE HERE Local 1.
  • A federal district court in Oregon dismissed a Section 1983 civil rights claim filed by the International Longshore and Warehouse Union against the Port of Portland, Oregon, alleging violations of federal labor law by extending rent concessions to a terminal operator and arranging rebates for ocean carriers affected by a labor dispute with the union. Although the union argued that the port administration’s involvement in the labor dispute was preempted under the NLRA, the court found the port was a “market participant” that had its own financial interest in insuring the financial solvency of the private terminal operator. Although the Section 1983 claim was dismissed, the court allowed the union’s remaining state law claims to proceed, which include allegations that the port violated a provision of the Oregon Constitution limiting local government’s use of tax revenues to aid or assist private corporations. Int’l Longshore & Warehouse Union v. Port of Portland.
  • The U.S. Court of Appeals for the Seventh Circuit held affirmed entry of an injunction sought by the NLRB to preclude the Red Cross Heart of America Blood Services Region from making unilateral changes in employment conditions after the American Federation of State, County and Municipal Employees local prevailed in a representation election for blood collection specialists. However, the circuit court found that the lower court’s grant of relief under Section 10(j) was improperly limited, stating that it was unconvinced that the Red Cross rescission of illegal changes would require “micro-managing” by the court. Although the Red Cross was properly ordered to rescind a unilateral pay freeze, the Seventh Circuit concluded the injunction should be expanded to cover the rescission of other unilateral changes pending the NLRB’s final resolution of the unfair labor practice allegations. Harrell v. Am. Red Cross.
  • An NLRB Administrative Law Judge (“ALJ”) held that Facebook posts by employees of Bettie Page Clothing in San Francisco that were critical of a manager’s handling of employee concerns were concerted protected activity and, therefore, the store violated the NLRA when it fired the employees over the posts. The ALJ found the employees wrote the posts as part of an effort to get the manager to close the boutique clothing store earlier in the evening because of concerns about working late in an unsafe neighborhood. After the workers approached the manager about closing the store early, several messages were posted on Facebook about the situation, including a post about bringing a California worker’s rights booklet to work to show the manager. The ALJ rejected the employer’s argument that the posts were meant to entrap the employer into firing the employees. Design Technology Group LLC d/b/a Bettie Page Clothing.
  • An NLRB ALJ found that a hotel violated Section 8(d)(3) of the NLRA when it made unilateral changes in employment terms and conditions of UNITE HERE-represented workers without first giving at least 30 days notice of the existence of the labor dispute to the Federal Mediation and Conciliation Service (“FMCS”). The employer argued that the requirement was satisfied when the union’s local branch informed the FMCS of the dispute. However, the administrative law judge found that the evidence presented did not establish that the union’s notice arrived 30 days before the changes were made. Remington Lodging & Hospitality LLC d/b/a Sheraton Anchorage.
  • An NLRB ALJ struck down and ordered the immediate end to two employment policies at the University of Pittsburgh Medical Center. One policy forbade employees from using company email accounts to send certain non-work related messages; the other prevented them from talking about the hospital system on social media sites accessed through company computers. The ALJ found the policies overly broad and ambiguous, and as such, he concluded they could chill employees from exercising protected rights to engage in union or other concerted activity. However, the judge upheld a third policy broadly forbidding solicitation through company email accounts. UPMC et al. v. SEIU Healthcare Pennsylvania.
  • The D.C. Circuit partially granted Flagstaff Medical Center Inc.’s petition for review challenging the NLRB’s decision to revive three CWA Local Union 7019 unfair labor practice claims. In granting the petition, the circuit court found that the NLRB had made an “interpretive leap” by holding that a statement made by the president of the Arizona acute care hospital about union negotiations during an organization campaign conveyed an implicit threat in violation of the NLRA. In a 2007 meeting with employees, the president said that if they opted to unionize, “I would not be negotiating with the union” or “you won’t be negotiating with me.” The Board interpreted this to mean he was threatening that unionization would be futile. However, the court found inadequate evidence to justify that finding, reasoning that the president and other executives were attempting to learn about employees’ concerns and that the true context of the statement was that he had been addressing the benefits of communicating directly with the workers. The circuit court stated that explaining the pros and cons of collective bargaining to workers and trying to convince them that non-unionization was a better option complies with the NLRA, so long as the employer does not use threats or promise benefits in return. Flagstaff Medical Ctr. Inc. v. NLRB.
  • In a memorandum to regional offices, the NLRB’s Division of Advice concluded that Verso Paper interfered with employee rights by issuing a blanket rule against employees discussing internal investigations. Citing the Board’s prior ruling in Banner Health System d/b/a Banner Estrella Medical Center, the memo stated that a paper company maintained an overbroad rule that violated Section 8(a)(1) of the NLRA, because the rule “reasonably chills” employees in the exercise of their Section 7 rights. In Banner Health, the Board held that an employer may prohibit employee discussions during an internal investigation only if it demonstrates that it has a legitimate and substantial business justification that outweighs employee rights.