The U.S. Court of Appeals for the D.C. Circuit affirmed the NLRB’s certification of IBEW Local 2222 as the bargaining representative of NCR Corp’s customer engineers and specialists in Massachusetts and Rhode Island. Following the union’s 17-14 representation election win, the company refused to bargain, objecting to the election on the grounds that seven mailed ballots were not counted after they arrived late. The NLRB dismissed NCR’s post-election objections, and the D.C. Circuit affirmed, citing the limited standard of review of NLRB election procedures. NCR Corp. v. NLRB.

A federal judge in Puerto Rico ruled that an arbitrator, not a judge, should resolve a dispute interpreting whether Telephone Technology Systems and the CWA’s collective bargaining agreement expired. The contract contained conflicting provisions—one stating that the agreement remained in effect until a specific date, while another stated that the pact stayed in effect until a new contract was negotiated. The court found that the dispute should be resolved under the arbitration provision of the contract, despite the possibility that the contract no longer applies. Communications Workers Local 3010 v. Tel. Tech. Sys., Inc.

An NLRB Administrative Law Judge (ALJ) found that Hendrickson USA LLC, an automotive parts maker in Kentucky, violated the NLRA when it informed employees of the possibility of adverse wage, benefit, and work environment changes in an attempt to dissuade employees from joining a union. Among the statements the ALJ found to be unfair labor practices were: (1) threatening employees that the workers’ wages and benefits would start from “ground zero” in the event they unionized; and (2) threatening workers that they would have a more difficult or onerous or difficult work environment as the culture would change, relationships would suffer, and flexibility would be replaced with inefficiency if they unionized. However, the ALJ ruled that a warning of a loss of direct contact with management, in the event of a successful union vote, did not constitute a threat. The ALJ ordered the company to cease and desist from threatening its employees, and to post notices acknowledging the workers’ rights. Hendrickson USA LLC.     

The NLRB vacated an ALJ dismissal of an arbitration finding that Weavexx LLC, a felt maker, could change its payday from every Thursday to every other Friday without union approval. The arbitrator’s decision was based on a management rights clause in the parties’ collective bargaining agreement, which the arbitrator found sanctioned the employer’s change in payroll practices. The NLRB held that although it may have reasoned otherwise, the arbitrator’s finding was consistent with the NLRA, therefore the Board should give the arbitrator's decision deference. Weavexx LLC v. Teamsters Local Union 984.    

An NLRB ALJ ruled that Northrop Grumman Systems Corp.’s class action waiver provisions violated federal labor law. The ALJ dismissed the underlying action—a push by a former Northrop employee to have her individual age discrimination suit heard in court rather than arbitration—on the grounds that the suit did not raise class issues. However, the ALJ ruled that the class waiver provisions of the challenged Dispute Resolution Program violated the NLRA under the Board’s precedent D.R. Horton—later affirmed by the Board in Murphy Oil—which provides that employers cannot force employees to waive their rights to file joint, class or collective actions over wages and hours. A circuit split over this issue—the Fifth, Second, and Eighth Circuits overruling the NLRB, and the Ninth and Seventh Circuits upholding the NLRB— makes the issue ripe for possible Supreme Court review. Northrop Grumman Systems Corp. v. Porfiria Vasquez.     

An NLRB ALJ ruled that Insight Global LLC’s employee handbook included four illegal provisions: class action waivers, confidentiality and data security, email and internet use, and non-disparagement. The ALJ, relying on the Board’s recent rulings in D.R. Horton and Murphy Oil, ruled the class action waivers in mandatory arbitration agreements violated the NLRA. In addition, the ALJ noted that the other three provisions violated federal labor law because employees were reasonably likely interpret them as disallowing employees from sharing information with one other regarding the terms of their employment or other protected activities. Insight Global LLC v. Dale Firmin.     

Similarly, an ALJ held that PennyMac, a mortgage lender company, must revise its mandatory arbitration policy that included an illegal class action waiver provision. Although the ALJ acknowledged the circuit split regarding the validity of class action waivers in mandatory arbitration agreements, he noted that he was bound to adhere to NLRB precedent. Private National Mortgage Acceptance Co. LLC v. Richard Smigelski.     

The NLRB ruled that Trump International Hotel Las Vegas violated federal law by refusing to bargain with the union representing housekeeping, food and beverage, and guest service workers at the hotel. The Trump Organization filed a petition for review, reasserting the already rejected argument that the union used fear and intimidation to convince employees to vote in favor of union representation in a secret ballot election. Trump Ruffin Commercial, LLC.     

A Texas bankruptcy court approved an order authorizing a closure agreement between Sherwin Alumina Co. LLC, a bankrupt aluminum-oxide maker, and the United Steel Workers, on behalf of approximately 450 locked-out workers. The deal provides that Sherwin Alumina will continue retiree benefits through the end of the year, pay $10,000 to each family with an employee who passed away during the lockout period, pay $2,000 in severance to employees eligible for supplemental employment benefits, and provide $2 million to an employee benefits trust. Sherwin Alumina Co. LLC.     

For the fourth time since August, an NLRB panel affirmed its jurisdiction over charter schools, finding that charter schools are private employers under the NLRB’s standard set forth in Hawkins County, thus allowing teachers at the schools to unionize. Farmworker Institute of Education and Leadership Development Inc. v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers.     

An NLRB ALJ held that Guitar Center Stores Inc. violated federal law by refusing to negotiate in good faith with the Retail, Wholesale, and Department Store Union for nearly two years. The ALJ recommended that the NLRB order the company to meet with the union, bargain in good faith, and post notices describing employee rights under the NLRA. Guitar Center Stores Inc.     

ABX Air, Inc., a cargo carrier, filed for a restraining order against the Teamsters, which represents its pilots, claiming members were refusing to bid on voluntary overtime assignments for open flights. Declining to order the injunction the court found the issue to be a "minor dispute," which should be resolved under the parties' collective bargaining agreement. ABX Air, Inc. v. Teamsters.    

An NLRB panel ruled that Component Bar Products Inc., a precision machine products maker, violated the NLRA when it fired an employee for warning another employee that he was going to be fired. Component maintained that it lawfully fired the employee based on two handbook provisions barring “insubordination or other disrespectful conduct,” and “boisterous or other disruptive activity in the workplace.” However, the Board reasoned that Component’s handbook language was too broad and could be read to prohibit protected speech in violation of the NLRA. The Board also signed off on an ALJ’s order, reinstating the employee with back pay. Component Bar Products Inc. v. James R. Stout.     

An NLRB Regional Director (RD) granted the IBEW’s petition requesting that the NLRB, rather than the National Mediation Board, assert jurisdiction over PrimeFlight Aviation Services Inc. baggage handlers, wheelchair agents, and line queue, as well as conduct a secret-ballot representation election for workers. The director rejected PrimeFlight’s argument that under the Railway Labor Act the case should be referred to the National Mediation Board. The RD reasoned that PrimeFlight is subject to NLRB jurisdiction because it supervised and exerted substantial control over workers. Prime Flight Aviation Services Inc. v. IBEW, Local 1430.     

An ALJ ruled that two construction companies were joint employers under federal labor law and thus jointly and severally liable for illegally firing seven workers that went on strike. The companies, located in Iowa and Illinois, share owners and an administrative structure. The workers were forced to resign after notifying management that they were striking over unsafe conditions and poor wages and benefits. The judge ordered the companies to rehire the workers and provide them backpay with interest and any expenses incurred while looking for work between jobs. Hy-Brand Industrial Contractors Ltd. v. Dakota Upshaw.     

The Arkansas Supreme Court ruled that federal law allowing organized demonstrations did not preempt Wal-Mart’s trespass lawsuits against union protestors from the United Food and Commercial Workers and Organization United for Respect at Walmart. The court held protestors may enter stores for “non-shopping purposes,” so long as they did not engage in disruptive activities, proven to cause irreparable harm. UFCW v. Wal-Mart Stores.     

A federal court in Washington, D.C. denied two unions’ requests that the court enjoin Amtrak from installing video and audio recording on trains without first negotiating with the unions. Although the unions claimed that Amtrak was unilaterally implementing new working conditions in violation of federal labor law, past practices and the collective bargaining agreement arguably permitted Amtrak’s equipment installation for what Amtrak claimed was primarily for safety purposes. Noting that this was a “minor” contract interpretation dispute, the judge found the dispute was out of the court’s jurisdiction and granted Amtrak’s motion to dismiss the unions’ complaint. Maint. of Way Emps. V. Nat’l R.R. Passenger Corp.     

A Texas federal judge granted a permanent order blocking the U.S. Department of Labor’s (DOL) new Final Persuader Rule, which would have required employers to provide information to employees when they hired consultants to fight unionization. Texas, nine other states, and various business groups alleged that the DOL’s rule was in violation of the First and Fifth Amendments, the Administrative Procedure Act, the LMRDA, and the Regulatory Flexibility Act, as well as stated that the new regulation impinged employers’ abilities to retain counsel during union organizing. For more information on the Final Persuader Rule, see our client briefing hereNational Federation of Independent Business v. Perez.     

The Second Circuit upheld the NLRB’s decision finding that Manhattan Beer Distributors LLC, a New York beer distributor, unlawfully fired a driver for refusing to submit to a drug test after allegedly smelling of marijuana. The circuit court relied on NLRB v. J. Weingarten Inc., wherein the U.S. Supreme Court held that under the NLRA, an employee has the right, during an investigatory interview, to have a union representative present if the employee reasonably believes the interview may result in disciplinary action. Manhattan Beer Distributors LLC v. NLRB.   

For the first time, a federal appeals court has upheld a municipality’s enactment of a right-to-work law. Initially, a lower federal court ruled that federal labor statutes only grant states the authority to pass right-to-work laws. However, the Sixth Circuit reversed the district court, reasoning that local governments are subdivisions of state governments and thus are included within the phrase “the states.” Auto Workers Local 3047 v. Hardin County.  

While the U.S. Court of Appeals for the Fifth Circuit upheld an NLRB decision requiring Macy’s Inc. to bargain with a unit of employees in its cosmetic and fragrance department, dissenting judges published a harsh criticism of the NLRB’s Specialty Healthcare standard. In Specialty Healthcare, the NLRB found that an appropriate bargaining of employees is a readily identifiable group that shares a community of interest. However, the Board noted that the finding could be overcome if the employer can establish that the proposed unit excludes workers who share an “overwhelming community of interest” with employees in the proposed bargaining unit. Relying on Specialty Healthcare, the NLRB approved a union’s request to exclude Macy’s employees from other departments, and a three judge panel of the Fifth Circuit upheld the decision. The Fifth Circuit voted, 9-6, to deny Macy’s petition for a rehearing by the full court, but dissenting judges criticized Specialty Healthcare as dismissive of established labor law principles. Macy’s, Inc. v. NLRB.     

Also addressing Specialty Healthcare, the U.S. Court of Appeals for the Second Circuit, joined six other federal circuits in upholding the Board’s two-prong analysis as lawful. However, in the underlying case, the circuit court found that the NLRB erred in approving a bargaining unit consisting of 46 “outside cellar” employees at Woodbridge Winery in California, and excluding 18 “barrel” employees who are also production workers. The court noted that the union must make “an initial showing,” and the Board must independently find that employees in the proposed unit have “a separate and distinct community of interest” from the other company employees. Constellation Brands, U.S. Operations, Inc. v. NLRB.     

A federal district court granted ABX Air’s request for a temporary restraining order requiring pilots to return to work for five days, reasoning that absent an injunction, the public would suffer immediate and irreparable harm. The pilots work for the Air Transport Services Group Inc., which transports packages for Inc. and DHL Worldwide Express. Pilots began striking on November 22, 2016, resulting in dozens of flights being cancelled. As a result of the injunction, flights were temporarily restored during the online peak shopping time between Thanksgiving and Cyber Monday. ABX Air, Inc. v. Int’l Bhd. of Teamsters.     

An NLRB ALJ found that United Parcel Service Inc. unlawfully fired a driver for campaigning against union activities, and for refusing to support the ratification of a collective bargaining contract with the Teamsters. After being fired, the driver continued working while his grievance was pending, and was fired a second time after the grievance procedure was completed. The ALJ ruled that because the employee posted inappropriate comments on Facebook about his bosses, which would be the basis for his termination under UPS’s anti-harassment policy, he was not entitled to reinstatement or full backpay. United Parcel Service Inc. v. Robert C. Atkinson Jr.     

The NLRB upheld an ALJ’s ruling, finding that the Detroit Masonic Temple illegally refused to bargain in good faith with an AFL-CIO-affiliated union, despite the union’s request to do so after prior collective bargaining agreements expired. The union represents various engineers and maintenance workers who work at the approximately 500,000-square-foot building, which includes a 20-story tower. Masonic Temple Association of Detroit and 450 Temple Inc. v. Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.