By an equally divided vote, the Supreme Court issued a one-line ruling affirming a Ninth Circuit decision that rejected a First Amendment challenge to public-sector union fees. Although the decision is non-precedential, it is significant for what it does not do–namely, overturn Abood v. Detroit Board of Education, an important and often-criticized decision favoring public sector unions. Before Justice Antonin Scalia’s death, observers expected a 5-4 vote in favor of a group of California public-school teachers looking to overturn Abood precedent allowing union fee mandates for public employees. For more details, see our client briefing, Equally Divided Supreme Court Affirms Ninth Circuit in Public Unions CaseFriedrichs v. California Teachers Association.

The U.S. Court of Appeals for the Seventh Circuit ruled that the NLRB had substantial evidence supporting its determination that a staffing company unlawfully fired an employee who participated in a brief protest of a supervisor’s treatment of another employee. Though accounts of what happened on the job differed between the company and the employees, the Seventh Circuit supported the NLRB’s affirmation of an Administrative Law Judge’s (ALJ) finding that the company unlawfully discharged the employee after complaining about the treatment of a coworker. Staffing Network Holdings v. NLRB.

The NLRB held that Dish Network illegally prohibited workers from engaging in concerted activity in work areas during nonwork time. A former Dish Network employee brought charges after he was fired for trying to get coworkers to join his wage and hour lawsuit while on work premises. Dish Network contended the employee was fired for failing to abide by its rest break procedures, but the NLRB found that was pretext for its decision to terminate the employee for organizing activities while on site. The NLRB ordered Dish Network to amend its solicitation policy to reflect the decision, and ordered the employee be reinstated with back wages. Dish Network, LLC.

Enforcing an NLRB order, the U.S. Court of Appeals for the Eighth Circuit held that the NLRB’s Specialty Healthcare standard for determining appropriate units in union representation cases is a reasonable interpretation of federal labor law. In Specialty Healthcare, the NLRB found that in evaluating the appropriateness of the unit sought in the petition, it had to first determine whether employees in the petitioned-for unit are “readily identifiable as a group” and whether “they share a community of interest using the traditional criteria.” Under Specialty Healthcare, if the NLRB determines a bargaining unit is appropriate, a party proposing enlarging the unit must demonstrate that the additional employees share an “overwhelming community of interest.” The Eighth Circuit ruled that NLRB’s two-step Specialty Healthcare analysis should be allowed and rejected FedEx’s contention that dockworkers at other locations should also be grouped with the drivers. FedEx Freight, Inc. v. NLRB.

The U.S. Court of Appeals for the Fourth Circuit ruled that judicial involvement in a labor dispute between the United Mine Workers of America and Peabody Energy Corp. subsidiaries was premature under the complete arbitration rule. The court reversed a district court decision to adjudicate a dispute that had already begun as a bifurcated arbitration, stating “[u]nder the complete arbitration rule, the arbitrator should have been given the opportunity to resolve both the liability and remedial phases of the dispute between the Companies and the Union before it moved to federal court.” Peabody Holding Co. v. Mine Workers.

 An NLRB ALJ dismissed a complaint on behalf of 1199 SEIU-United Healthcare Workers East workers against Baptist Health Nursing and Rehabilitation Center Inc. of Scotia, ruling that the New York nursing home did not need to bargain a decision to terminate two employees pending negotiation of a first labor agreement. The ALJ ruled that the U.S. Supreme Court’s Noel Canning decision, which invalidated President Barack Obama’s 2012 recess appointments to the NLRB, invalidated the Board’s 2012 decision in Alan Ritchey, obligating bargaining in an interim period. Therefore, the ALJ determined that under the controlling Board precedent, the 2002 Fresno Bee decision, the employer was not obligated to bargain until a bargaining contract is reached. Baptist Health Nursing and Rehabilitation Center, Inc.

 An NLRB ALJ ruled that LA-based Cedars-Sinai Medical Center unlawfully maintained mandatory arbitration agreement that employees could reasonably construe as restricting their right to file charges with NLRB, and by enforcing the agreement in court to preclude class or collective action by its employees. The ALJ ordered Cedars-Sinai to “rescind the mandatory and binding arbitration agreements in all of its forms, or revise them ....” The hospital is currently a defendant in a class action in a California state court, in which it moved to compel arbitration of the charging party in this case. Cedars-Sinai Medical Center.

In an unpublished opinion, the U.S. Court of Appeals for the Fourth Circuit enforced a Board bargaining order against a recycler of polyester fibers after production and maintenance employees at its South Carolina plant voted to be represented by Local 7898 of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and SEIU. In refusing to bargain with the union, the company had argued that the union’s election victory should be set aside, because supervisors interfered with the employees’ “freedom of choice.” Looking at whether the individuals were supervisors, the appeals court conceded they had exercised some authority over other employees. However, the court said it was reasonable for the NLRB to find that they did not exercise the necessary independent judgment when doing things like assigning tasks or disciplining employees. Upholding the Board’s application of Oakwood Healthcare, Inc., the court found that there was “substantial evidence” to support the NLRB’s conclusion that four men who worked at the plant were not supervisors under the NLRA. The court also agreed with the Board that the employer did not carry its burden of proving its alternate claim that those employees, if not supervisors, nonetheless engaged in objectionable third-party conduct materially affecting the election. Pac Tell Group, Inc., d/b/a U.S. Fibers.  

A Board majority held that an ALJ acted within her discretion in denying McDonald’s USA LLC’s efforts to subpoena documents from unions and other groups that were involved in a protest campaign against the national restaurant chain. The Board majority found that McDonald’s perception of the campaigns may be relevant to its defense, but the actual motives of the protest groups were not relevant to establishing a defense against unfair labor practice allegations. McDonald’s USA LLC.  

An NLRB ALJ ruled that Quicken Loans violated federal labor law when it fired a banker accused of griping about the job in the restroom, saying the profanity-laced conversation was protected activity and that the man who overheard the exchange from a restroom stall accused the wrong employee. The ALJ ordered Quicken to rehire the employee and pay him for lost earnings, as well as remove workplace rules found to be unlawful restraints on employees’ rights to discuss working conditions. Quicken Loans

An NLRB panel found that a union representative did not act as the union’s agent when he reported an altercation with an Fiat Chrysler test driver to the company. The Board determined that the complaint about the altercation to the company’s human resources representatives ultimately was the cause of the driver’s termination, despite his record as an exemplary employee. However the NLRB found that the complaint in itself was not related to protected union activity. Autoworkers Local 509 ( Fiat Chrysler Automobiles Group).  

The U.S. Court of Appeals for the D.C. Circuit reversed a Board panel’s 2-1 ruling that Dover Energy Inc. unlawfully threatened to discipline an employee, who was also a union steward, for frivolous information requests, finding that the requests were indeed frivolous and that no reasonable person would think the company’s warning barred legitimate, protected activity. The court determined that the NLRB’s decision in favor of the employee/shop steward, was not supported by the evidence. The employee had twice requested company information, saying it was for union business, but when the company contacted the union to verify the requests, the union responded that the employee was acting on his own. After the employee’s second request, the company warned him if he made similar requests in the future he might be fired. The circuit court found that reading the employer’s statement “in proper context,” showed that the remark was aimed at the steward repeatedly giving the company information demands that were not authorized by his United Auto Workers local and were not protected by the NLRA. Dover Energy, Inc. v. NLRB.

The Second Circuit upheld a Board decision that a union dealing with the New York Times and New York Post engaged in unfair labor practices by failing to tell non-union members that they did not need to pay full dues and by encouraging hiring based on union membership. Among other things, the court found that substantial evidence supported the Board’s findings that the union caused or attempted to cause employers to discriminate against certain employees by giving hiring preference to non-unit individuals based on their union membership or prior employment with another signatory employer. NLRB v. Newspaper & Mail Deliverers’ Union of N.Y. & Vicinity.  

The Eighth Circuit held that an appeal filed by nine home health care workers challenging the denial of a preliminary injunction to stop Minnesota from holding an election and certifying a union as the workers’ exclusive representative must be dismissed as moot because those events already have occurred. The district court had denied as premature the workers’ first motion for a preliminary injunction to halt the election. The district court then denied a renewed motion for an expedited injunction. On appeal, the Eighth Circuit upheld the second denial as moot explaining that reversing the lower court’s denial of the injunction at this point would not adequately address the alleged harm the home care providers sought to prevent–that is, the election and certification of SEIU Healthcare Minnesota–because these have already occurred. Bierman v. Dayton.  

The Eighth Circuit ordered a security services provider to bargain with a union representing mid-level officers at a Minnesota nuclear power plant, finding the company failed to meet its burden of showing the workers “were” supervisors. The circuit court found that there was “substantial evidence” to support the Board’s ruling against Securitas Critical Infrastructure Services Inc. The appeals court said Securitas had not shown that the officers who are referred to as lieutenants, exercised independent judgment when acting as “team leaders” in the event of an attack on the facility. Thus, the court found that the officers were not supervisors, and were appropriately part of the bargaining unit. Securitas Critical Infrastructure Servs., Inc. v. NLRB.  

Following the D.C. Circuit, the Ninth Circuit became the second federal appellate court to rule that Lafe E. Solomon lacked the authority to continue serving as the NLRB’s acting general counsel once President Barack Obama nominated him in 2011 to serve a full term in the position. The appellate court rulings may now call into question the validity of at least some of Solomon’s actions from January 2011 until November 2013, when he was succeeded by Richard F. Griffin. A unanimous Ninth Circuit panel, found that the Federal Vacancies Reform Act sets conditions for an appointee serving as an agency’s acting officer and the president's nominee, and Solomon’s continuing service was not covered by the statute. As such, the court found that the NLRB’s bid for an injunction, at Solomon’s direction, while it processed an unfair labor practices charge filed against Kitsap Tenant Support Services Inc. should be dismissed. Hooks v. Kitsap Tenant Support Services, Inc.