• The Court of Appeals for the District of Columbia enforced an National Labor Relations Board ruling that Atrium of Princeton LLC (operator of a nursing home in New Jersey) violated its duty to bargain with SEIU 1199 New Jersey Health Care Union by unilaterally changing its health insurance plan following a break in a good-faith impasse in negotiations. Negotiations for a successor labor contract stalled over health benefits costs—the union proposed that Atrium contribute 22.33 percent gross payroll contribution to the benefit fund, up from the previous 13 percent, to the Greater New York Benefit fund that provided union employee health benefits. Subsequently, trustees of the benefit fund cancelled health insurance to Atrium union workers. The appellate court found that the cancellation broke an impasse in negotiations because it indicated to the union that Atrium would not accept the union’s proposal for increased benefit contributions, and that the union was not responsible for the health insurance cancellation because Atrium did not show that the benefit fund was an agent of the union. Atrium of Princeton LLC v. NLRB.
  • The NMB held that the Railway Labor Act (“RLA”) did not apply to the Air Serv Corp.’s shuttle bus service at LaGuardia Airport. NMB determined that Air Serv did not satisfy a two-part RLA jurisdiction test because the LaGuardia Airport Airline Managers Council did not have sufficient control over Air Serv employees. In other cases, the NMB has determined that Air Serv operations do fall under the RLA, such as at the Memphis International Airport. In that case, the NMB found that FedEx exercised sufficient control over Air Serv operations by scheduling workers’ shifts, recommending discipline and termination, retaining hiring authority, governing grooming standards, and providing free office space and equipment. The NMB reconciled these decisions by stating that it determines this issue on a case-by-case basis, taking into consideration contracts and practices. Air Serv Corp.
  • NLRB Administrative Law Judge Margaret G. Brakebusch held that General Electric Co.’s subsidiary Advanced Services Inc.’s alternative dispute resolution policy, requiring employees to bring only individual claims although allowing class claims if both the worker and the company agreed, violated the National Labor Relations Act. Following Board precedent in D.R. Horton Inc., the ALJ determined that the policy did not clarify circumstances that would trigger the class waiver and so there were no explicit circumstances under which ASI would abandon the class waiver clause, causing a chilling effect and violating the NLRA. The ALJ further held that the arbitration policy’s confidentiality provision could be read to prevent employees from discussing provisions of their employment. Advanced Services Inc.
  • The U.S. District Court for the District of Oregon granted the NLRB’s petition for a 10-day temporary restraining order blocking longshoremen, in a union dispute regarding jurisdiction over two jobs, from engaging in work slowdowns that have negatively impacted the Port of Portland. The dispute centered between the IBEW and the International Longshore & Warehouse Union, the former contending that the disputed work falls under the terms of its contract with the port and the latter contending that the jobs are under its contract with the Pacific Maritime Association. The parties reached an interim agreement wherein ILWU members will perform the disputed work until a NLRB decision comes down. Despite the TRO, a slowdown occurred on July 4, which was resolved in an arbitration hearing in which ILWU members were directed to work at a normal rate. The federal court did not hold the longshoremen’s union in contempt for the alleged TRO violation resulting from the slow down. Hooks v. Int’l Longshore & Warehouse Union.
  • The NLRB held that a no-access policy—limiting off-duty hospital employees’ access to the hospital—violated the NLRA. Sodexo America LLC and USC University Hospital posted and enforced, respectively, the no-access policy that prohibited off-duty employees’ access to the hospital except to visit patients, obtain medical treatment, or to handle hospital business. In evaluating the policy, the NLRB applied Tri-County Medical Center, 222 NLRB 1089 (1976), which held that an employer can only bar off-duty employees from accessing a facility if it: (1) only limits the access to the interior, (2) is clearly circulated to all employees, and (3) does not restrict access solely for union activity. The NLRB determined the policy violated the NLRA because it did not allow off-duty employees access to the hospital to engage in union activity but permitted the employer to allow access to the hospital for any other purpose. The NLRB clarified, however, that a hospital does not violate Tri-County by allowing off-duty employees on the premises as members of the public seeking health care. Ultimately, the NLRB remanded the matter to the ALJ to determine if the discipline employees were subject to for violation of the no-access policy implicated NLRA Section 7 violations. Sodexo Am. LLC.
  • The U.S. Court of Appeals for the Tenth Circuit enforced an NLRB order that Teamsters Local 523 committed an unfair labor practice when it demanded that Interstate Bakeries Corp. place an employee at the bottom of a seniority list based on his lack of prior membership in the union. Additionally, the circuit court sanctioned the union for bringing the substantially same dispute to the Tenth Circuit a second time. The NLRB’s two-member panel's first ruling found that Interstate Bakeries violated the NLRA when it agreed to put its long-standing employee, but new member of the Local, at the bottom of the seniority list. Following the Tenth Circuit’s affirmation of the NLRB’s decision, IBT Local 523 petitioned to U.S. Supreme Court for review under New Process Steel LP v. NLRB, which held that an NLRB panel of less than three members lacked the authority of the five-seat NLRB. The Supreme Court remanded to the Tenth Circuit based on New Process Steel, at which time the Tenth Circuit vacated its judgment and remanded to the NLRB. After a second review, a three-member NLRB panel held again that IBT’s actions violated the NLRA. IBT petitioned again to the Tenth Circuit for review. The Tenth Circuit found the second NLRB order and appeal substantially the same as the first, and sanctioned IBT Local 523 for a frivolous appeal, noting that it was not frivolous to put the case before the NLRB a second time, but only that it was frivolous to bring virtually the same decision to the Tenth Circuit a second time. NLRB v. Teamsters Local Union No. 523.
  • The Wisconsin Supreme Court rejected a petition for a rehearing on the legitimacy of a Wisconsin law that limits the collective bargaining rights of public employees. The Dane County District Attorney petitioned the Wisconsin Supreme Court to vacate its 4-3 ruling that upheld the Wisconsin law on the grounds that one of the justices in the majority should have recused himself from the case due to a personal conflict. The petition also sought to preclude the justice from any further proceedings relating to the case. The court denied the recusal petition in a 3-3 decision, the conservative three finding that the challenged justice did not act improperly by determining that he could act impartially because under Wisconsin Statutes Section 757.19(2)(g), a judge’s subjective self-evaluation regarding recusal is proper and the court does not remove justices involuntarily. The liberal dissent asserted that the majority opinion lacked analysis regarding the recusal decision and raised the question of whether a fair trial exists and if due process is violated where a challenged judge goes forward with the case, citing Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009). Ozanne v. Fitzgerald.
  • The NLRB held that Evenflow Transportation Inc.’s layoffs, following union-organizing activity by Local 713, International Brotherhood of Trade Unions, were carried out to depress labor union support in violation of the NLRA. The NLRB held that the timing of the layoff created an inference of animus toward union supporters and anti-union comments and threats made by a company manager indicated that the company had basic knowledge of the union’s activities. Evenflow Transp. Inc.
  • The NLRB issued a complaint against Hyatt Hotels Corp. alleging that its common at-will policy language in its employee handbook acknowledgment form was overbroad and constituted an unfair labor practice. Specifically, the form stated that the company’s at-will policy could only be altered by written agreement signed by company executives and employees. Hyatt Hotels settled, eliminating any formal ruling. This follows a similar claim handled by an ALJ in Arizona against the American Red Cross challenging the organization’s at-will employment disclaimer. The at-will employment language at issue in both Arizona cases is used nationwide. NLRB v. Hyatt Hotel Corp.; NLRB v. American Red Cross. See Winston & Strawn LLP client briefing on this issue.
  • The NLRB held that California Nurses Association, National Nurses Organizing Committee violated its duty to bargain with California’s Henry Mayo Newhall Memorial hospital by adding language to a collective bargaining agreement that was not part of contract negotiations and was opposed by the hospital. The NLRB also found that the unilaterally included language, that implied that an employee could not avoid union representation during an investigation, was ambiguous and chilled employees’ implementation of NLRA rights. Calif. Nurses Ass’n (Henry Mayo Newhall Mem. Hosp.)
  • The U.S. Court of Appeals for the Sixth Circuit held that it did not have subject mater jurisdiction over a collective bargaining dispute. The court held that the NLRB has exclusive jurisdiction over DiPonio Construction Co.’s claim against Bricklayers and Allied Craftworkers Local 9 for refusing to bargain. The Sixth Circuit held that courts must defer to the NLRB when a claim is under the NLRA Sections 7 or 8 and is “primarily representational.” It then found that the dispute between DiPonio and Bricklayers to be primarily representational under the NLRA, precluding the court from having jurisdiction over the matter unless the issues before the NLRB and the court are different or if the NLRB declines to decide an issue and defers to the court. The Sixth Circuit upheld sanctions imposed by the district court pursuant to Federal Rule of Civil Procedure 11 on the grounds that DiPonio’s claims were not properly supported by law or fact. DiPonio Constr. Co. v. BAC Local 9.
  • The Alaska Supreme Court held that the Alaska Public Employment Relations Act (“PERA”) creates an implicit union privilege that enables state employees and union representatives to keep communications relating to discipline and grievances confidential. The court found that without the privilege, the right to union protection would be compromised because conversations with union representatives would not be protectable. In this case, an Alaska State Department worker was terminated after the department determined that the worker failed to include a felony on his job application. He went to the Alaska State Employees Association and communicated information to a non- lawyer union representative about his wrongful termination case. The state subpoenaed the union representative to testify and the state court found that there was no privilege protecting the communications between the non- lawyer union representative and the employee. In determining that communications between employees and union representatives are impliedly privileged under the PERA, it reversed and remanded with instructions to consider a protective order limiting the disclosure of communications. Patterson v. Alaska.
  • Judge James E. Boasberg of the U.S. District Court for the District of Columbia denied the NLRB’s motion to alter or amend a judgment finding that the recent changes to the NLRB’s representation case rules are invalid and unenforceable because the Board failed to assemble a quorum for its final vote of the changes. See NLRB Election Rule Change Invalid. The NLRB had supported its post-judgment motion with evidence intended to show that NLRB Member Brian E. Hayes (R) was “present and participating” in an electronic voting “room” at the time Chairman Mark Gaston Pearce (D) and then-Member Craig Becker (D) took final action on the rule. However, Judge Boasberg found that: the NLRB simply chose not to rely on the information during the briefing of motions for summary judgment; the Board failed to show that he made a clearly erroneous decision; and the evidence offered by NLRB in its post-judgment motion “would have been useful at the summary judgment stage, but it likely would not have changed the outcome even then.” The court’s opinion noted that the NLRB is not prevented from voting again on the rulemaking proposal with a properly constituted quorum. Chamber of Commerce v. NLRB.
  • The NRLB ruled 2-1 that an employee summoned by management to receive a disciplinary notice for inaccurate timecard entries had a right to the presence of a union representative once a plant manager began questioning the worker's attitude and unrelated aspects of his performance. Long-standing U.S. Supreme Court precedent in, NLRB v. J. Weingarten Inc., holds that the NLRA guarantees an employee's right to have a union representative present during an “investigatory interview in which the risk of discipline reasonably inheres.” The employer, General Die, argued that the meeting began as a non-investigatory session with the purpose of delivering a warning notice that the company had already decided to issue and was already filled out. The second part of the meeting involved unrelated issues that were not the subject of pending disciplinary action. However, the Board majority found that General Die was required to grant the employee’s request for union representation when disciplinary meeting shifted to discussion of employee “traits” and “problems.” The NLRB found the employee could reasonably have believed the meeting was investigatory and answers to management questions could be used against him. General Die Casters, Inc.
  • An NLRB ALJ held that a pair of nursing home owners and operators, HealthBridge Management and Care Realty, involved in a strike by New England Health Care Employees Union, District 1199, SEIU represented workers at five facilities in Connecticut violated the NLRA by removing fliers and prohibiting employees from wearing certain stickers. The NLRB had filed several complaints against the companies, including one alleging that the companies refused to bargain in good faith with the union when they unilaterally imposed a new proposal governing wages, hours, benefits, and working conditions without first bargaining to a good-faith impasse. The most recent complaint was issued just three days after approximately 700 union workers walked off the job. The ALJ ruled that HealthBridge violated the NLRA when it prohibited employees from exercising their rights under the NLRA to wear stickers and post fliers indicating that the company had been the subject of an earlier NLRB complaint. The ALJ ordered the company to cease and desist from removing such fliers and prohibiting employees from wearing the stickers, as well as interfering with, restraining, or coercing employees in the exercise of their rights under the NLRA. HealthBridge Mgmt. Inc.
  • The NLRB ruled 2-1 an Arizona hospital violated NLRA Section 8(a)(1) when it interfered with employee rights by asking employees not to talk to co-workers about internal complaints under the hospital’s investigation. The Board majority found that Banner Health System, prohibited employee discussion of misconduct allegations and that the hospital's “generalized concern” about the integrity of its internal investigations did not outweigh the employees’ NLRA Section 7 rights. Finding the hospital's “blanket approach” of asking for employee silence in every investigation could not be justified, the majority said the hospital practice had a “reasonable tendency to coerce employees” even without a direct or specific threat of disciplinary action. In dissent, Board member Brian E. Hayes found that the requests to limit discussions were devoid of threats and reflected only a “suggestion” rather than a binding rule. Therefore, Hayes found there was “no work rule at all” and no need to consider whether the hospital met its legal burden of demonstrating a business justification for a rule. Banner Health Sys. d/b/a Banner Estrella Med. Ctr.