The U.S. Court of Appeals for the Sixth Circuit upheld a NLRB decision ordering a tribal casino to cease and desist NLRA violations and to reinstate an employee who was terminated for union solicitation. The tribe argued that it has the sovereign right to control the terms of employment with nonmember employees at the casino, but the court noted it was bound by Little River, which held the NLRA to be applicable to a tribal casino because the Act did not undermine "tribal self-governance in purely intramural matters,” there was no evidence that the law was not intended to apply to tribes, and application of the Act would not violate any treaty. The court found that the tribe did not satisfy any of these exceptions to restrictions on tribal sovereignty and ruled that the NLRB has jurisdiction over the casino. Soaring Eye Casino and Resort v. NLRB.
The U.S. Court of Appeals for the District of Columbia Circuit denied the Board’s cross-petition for enforcement of an order finding that a California pediatric hospital violated Section 8(a)(5) by refusing to arbitrate outstanding employee grievances with a decertified union. According to the court, although Section 8(a)(5) requires employers to arbitrate grievances with a union even after the expiration of a collective bargaining agreement, Section 9(a) requires employers to exclusively bargain with a newly certified union. Consequently, the Act "does not identify where the duty to resolve unfinished business with the old union ends and the duty to bargain exclusively with the new union begins.” The court found that the Board failed to consider this conflict in its decision and remanded the case for additional proceedings so that the Board could engage in further statutory interpretation. Children’s Hosp. & Research Ctr. of Oakland.
The U.S. Court of Appeals for the District of Columbia Circuit vacated a NLRB decision holding that AT&T violated Section 8(a)(1) of the NLRA by prohibiting employees from wearing t-shirts emblazoned with the words “inmate” and “prisoner of AT$T” and disciplining those employees who failed to comply with its directive. The t-shirts were provided by the CWA, as a part of its public-relations campaign during negotiations for a new collective bargaining agreement. Citing Republic Aviation Corp. v. NLRB, the court first explained that “courts have long-recognized that the NLRA rights of employees to display union messages may be restricted if ‘special circumstances’ justify a limitation.” Then quoting the Board’s Bell-Atlantic-Pennsylvania Inc. decision, the court said that an “employer’s concern about the ‘public image’ presented by the apparel of its employees is … a legitimate component of the ‘special circumstances’ standard.” The court went on to find that the Board should have applied “special circumstances” here as AT&T could reasonably believe that the t-shirt’s message could harm its relationship with its customers or its public image. S. New England Tel. Co. v. NLRB.
The U.S. Court of Appeals for the District of Columbia Circuit vacated and remanded a NLRB decision holding a Las Vegas casino’s request to the police constituted an unfair labor practice. Two unions requested and received a permit, over the Venetian’s objections, to hold a demonstration protesting the casino’s lack of a collective bargaining agreement. During the demonstration, the Venetian played a recorded message stating demonstrators could be arrested for trespass and also asked the police to issue criminal citations to the demonstrators. In a prior proceeding, the court affirmed the Board’s ruling that the demonstration was protected by the Act and remanded the case to the Board to determine whether the casino’s request to the police was a petition protected by the First Amendment under the Noerr-Pennington doctrine. On remand, the Board found that the police request was not a direct petition to the government as it was not a petition seeking “the passage of a law or rule, or a significant policy decision regarding enforcement” and therefore was not protected. Relying onAllied Tube, the court reversed, holding that “the act of summoning the police to enforce state trespass law is a direct petition to government subject to protection” under the doctrine. The court however remanded the case so that the Board could determine whether the casino’s request was a “sham petition,” thereby excluding it from the doctrine’s protection. Venetian Casino Resort, LLC v. NLRB.
The D.C. Circuit ordered the NLRB to reconsider its unilateral approval of a settlement requiring Northeastern Land Services, a temporary employment agency, to reinstate a wrongfully terminated employee and provide him with backpay and accrued interest. The NLRB had ordered Northeastern to offer the employee his former position or, if that no longer existed, a “substantially equivalent” position and to make the employee “whole” for any earnings loss as a result of his discharge. Northeastern and the Board subsequently reached a settlement under which Northeastern would pay the employee $201,000 in monthly payments over 11 years, and offer him a substantially equivalent job. The Board unilaterally approved the settlement terms over the employee’s objections and the employee appealed. First, rejecting the Board’s contention that it could only examine whether the Board abused its discretion, the court explained that because the order was enforced by an appellate court, the Board was obligated to “apply the correct legal standards, ground its factual findings in substantial evidence, and give reasoned explanations for any departure from precedent on the scope of its post-enforcement authority to alter court orders.” The court then found that here, the Board failed to offer any explanation as to why it waived the employee’s right to more than $41,000 in interest payments and as to its conclusion that Northeastern complied with its order by offering reinstatement to a substantially equivalent position, making remand necessary. Dupuy v. NLRB.
The D.C. Circuit upheld a Board decision finding that a Virginia hospital violated the NLRA by discharging, disciplining, and failing to promote three nurses who engaged in protected concerted activity. The court found that there was substantial evidence to support the Board’s finding that the hospital terminated one nurse for criticizing a nursing fellowship program. The Board found that the nurse’s concerns “directly impacted” nurses as the program touched upon their hours and working conditions and that the hospital’s decision was motivated by animus over the complaint. The Board also found that the hospital wrongfully disciplined another nurse who protested the discharged nurse’s treatment. Finally, the Board concluded that the hospital wrongfully denied a third nurse a promotion based on her comments about after-hours surgical assignments, explaining that her comments did not amount to advocating a strike. INOVA Health Sys. v. NLRB.
The Michigan Supreme Court held, 4-3, that the state’s right-to-work law, which prohibits employers and unions from requiring union dues or agency fees as a condition of employment, applies to state government workers. The majority found that the state Civil Service Commission did not have the “constitutional authority” to force employees to pay fees and dues as it lacks the power to “tax or appropriate.” The dissent argued that the dues in question are not a “tax or appropriation” because they are paid directly to the union or agency and would have held that a collective bargaining agreement imposing such a fee would control and not any legislative rule. Auto Workers v. Green.
A U.S. District judge for the District of Columbia granted summary judgment for the NLRB in an action brought by the U.S. Chamber of Congress claiming that a number of features of the so-called “ambush election rules” violate precedent or legislative history under the NLRA, violate the Constitution, and are the result of “arbitrary and capricious rulemaking.” In so holding, the court labeled plaintiffs’ objections as “a disagreement with choices made by the agency entrusted by Congress with broad discretion to implement the provisions of the NLRA and to craft appropriate procedures.” The court concluded the Board acted properly in enacting the new rule and that the rule did not run afoul of the constitution or the NLRA. The U.S. District Court for the Western District of Texas also dismissed challenges against the rule on similar grounds. U.S. Chamber of Commerce et al v. National Labor Relations Board.
The U.S. District Court for the District of New Jersey granted the NLRB’s request for a preliminary injunction, ordering two supermarkets to recognize and bargain with UFCW Local 464A. The court found that there was sufficient evidence, namely the overlap of staff and commingling of funds, to establish reasonable cause to believe the companies are alter egos. Leach v. Oliva Supermarkets LLC.
A U.S. Bankruptcy Court for the District of Delaware judge held that UNITE HERE Local 54’s boycott of the Trump Taj Mahal casino in Atlantic City, N.J. does not violate the “automatic stay” provisions of bankruptcy code, thus allowing the boycott to continue. The judge held that the union’s actions, which included encouraging organizations to cancel their events at the casino, were protected by the Norris-LaGuardia Act. The judge also found the bankruptcy code inapplicable because the union did not seek to obtain control of the casino’s property and was merely trying to pressure the casino in new contract negotiations. Local 54, which represents 11,000 workers at the casino, began boycotting in response to the judge’s earlier decision allowing the casino to change certain provisions of their collective bargaining agreement. In re Trump Entm’t Resorts, Inc.
A U.S. District Judge for the Central District of California granted the NLRB’s petition for a preliminary injunction barring a grocery store chain from imposing unilateral changes in its vacation policy and terminating workers for engaging in protected activity. The chain allegedly discharged an active union supporter and changed its vacation policy in response to employee protests about unfair labor practices. In granting the injunction, the court also ordered the chain to offer reinstatement to the terminated employee. Pate v. Bodega Latina Corp.
A divided NLRB panel upheld a regional director’s ruling that captains on a tugboat were not supervisors under the NLRA. The majority found that the captains neither exercised any supervisory assignment authority nor independent judgment in their routine decisions. Disagreeing, the dissenting member argued that the captains were ultimately responsible for all decisions made on the boat. The Board’s decision permits captains and deckhands to vote in a single bargaining unit. Cook Inlet Tug & Barge, Inc.
A three-member NLRB panel ordered a new election after finding that a Virginia custodial contractor unlawfully provided benefits to employees prior to the election, tainting the results. The Board held that the company “failed to rebut the inference that its distribution of the bonus during the critical period was coercive by providing an explanation for the timing of the bonus” as required under United Airlines Service Corp. SMB Management Services and International Chemical Workers Union Council, UFCW.
A split NLRB panel ruled that a Michigan hospital violated the NLRA by unilaterally imposing changes to the employee’s health care plan during the term of a collective bargaining agreement. The Board found that the agreement expressly denied the hospital the right to change the employees’ premium contributions and ordered that the hospital reimburse employees for all expenses resulting from it’s unfair labor practice. The dissenting member disagreed with the majority’s interpretation of the contract and would have deferred the matter to arbitration. Oakland Physicians Med. Ctr., LLC.
A divided NLRB panel held that a New York restaurant violated the NLRA when it terminated an employee for filing a Fair Labor Standards Act (FLSA) collective action on behalf of himself and his co-workers. The Board found the employee engaged in protected concerted activity by initiating the suit, even though a judge later dismissed the case because the employee failed to get the other employees’ consent. The dissenting member argued that the FLSA already prohibits employers from retaliating against employees who file a complaint and therefore the employee’s remedy was under the FLSA and not the NLRA. 200 E. 81st Rest. Corp.
A NLRB regional director dismissed a petition for a representation election filed by graduate assistants at the New School and Columbia University in New York City. It was the second time the graduate assistants, represented by a UAW affiliate, sought representation, and the second such time the regional director dismissed their petition. The regional director ruled that it was “constrained” by Brown University, a Board decision holding that graduate assistants are not employees under federal law. The graduate assistants will appeal the decision and seek to have the Board overrule its decision in Brown. The New School.
Relying on Murphy Oil USA Inc. and D.R. Horton, Inc., an NLRB Administrative Law Judge (ALJ) held that an opt-out arbitration policy waiving employees’ rights to file and maintain class actions violates the NLRA. Although the policy was not mandatory, the ALJ found that it was nonetheless unlawful because employees were not permitted to reconsider their decisions. The ALJ recommended that the company retract the arbitration agreements. AT&T Mobility Servs. LLC.
An ALJ ruled that a New Jersey janitorial firm violated the NLRA by failing to hire union-represented employees and refusing to recognize and negotiate with the union. Eastern Essential Services (Eastern) took over cleaning contracts at three buildings and did not hire the incumbent employees, instead selecting employees via its “internal reference system.” The ALJ found that this decision was motivated by anti-union animus as the company disregarded the “obvious choice” of hiring experienced employees familiar with the buildings and recommended by the predecessor cleaning companies. The ALJ also found Eastern to be the legal successor of the predecessor companies and thus had a duty to bargain with the union and could not unilaterally impose new conditions on the incumbent workers without giving the union an opportunity to negotiate. The ALJ recommended that the Board order Eastern to negotiate with the union. E. Essential Servs., Inc.
An ALJ held that a food services contractor supplying workers to Anderson University unlawfully interfered with a representation election by asking employees to consider the reaction of the university to unionization. The ALJ found that the company’s questions threatened workers with job loss and was not protected by Gissel, as the company lacked any knowledge “that would lead them to question the university’s willingness to tolerate unionization.” The ALJ recommended that the election be re-run. Compass Grp. USA, Inc.
An ALJ ruled that Boeing Co. was obligated to provide the Society of Professional Engineering Employees in Aerospace (SPEEA), the union representing the company’s technical and engineering employees, information about Boeing’s plans to relocate work from the Puget Sound area. Boeing argued SPEEA had no right to information about “ideas written on napkins” that were not yet corporate decisions, but the ALJ found that the information sought was about “concrete” decisions. The ALJ noted that Boeing announced it would move 1,000 jobs to California shortly after telling the union that it was currently only studying relocation. According to the ALJ, it was clear that the company’s refusal to provide SPEEA with information was “simply semantic gamesmanship designed to keep the union in the dark about its plans.” The ALJ recommended the Board order Boeing to answer the union’s requests.
An ALJ held that a paving company violated the NLRA when it terminated one employee and threatened to discharge another. The ALJ found that the company “provided shifting reasons” for the employee’s termination, which occurred two days after the employee engaged in concerted activity under Section 7 by complaining to the owner about a supervisor’s abusive behavior. The ALJ also found that the supervisor violated Section 8(a)(1) of the Act when he told another employee that he could quit in response to his complaints about treatment. According to the ALJ, “an employer’s invitation to quit in response to protected concerted activity is coercive” as it implicitly threatens discharge. The ALJ recommended that the Board order the terminated employee reinstatement with backpay. Bates Paving & Sealing, Inc.
Relying on the nullified decision Alan Ritchey, Inc., an ALJ found that an employer violated Sections 8(a)(5) and 8(a)(1) by disciplining employees without providing notice to the a newly elected union. Alan Ritchey was invalidated by the U.S. Supreme Court in Noel Canning, which held that due to unconstitutional recess appointments, the Board lacked a proper quorum of three members. Although the ALJ acknowledged that Alan Ritchey was not valid precedent, he found the Board’s reasoning persuasive, and stated that it was likely the Board would ultimately adopt its previous decision. Kitsap Tenant Support Services, Inc.
An ALJ ruled that a New York retailer did not commit an unfair labor practice by failing to add dues-checkoff and union security provisions to a collective bargaining agreement. The union claimed that the company’s repeated refusals to agree to its proposals violated the company’s duty to bargain. Rejecting the union’s argument, the ALJ noted that the company agreed on other subjects, including wage increases and grievance procedure, and that the company bargained in good faith, even if it did not reach agreement on all issues. Apogee Retail, NY, LLC.
The NLRB filed a response urging the U.S. Supreme Court to deny a former Board attorney’s petition for certiorari. Don Firenze brought suit against the NLRB claiming the agency violated its collective bargaining agreement by giving him low performance evaluations and disciplining him, and violated his First Amendment rights by prohibiting him from disclosing his claims to the public. The U.S. Court of Appeals for the First Circuit dismissed his claims. In its opposition, the NLRB argues that the Federal Service Labor-Management Relations statute does not permit breach of contract claims against public employers and that Firenze’s retirement makes his First Amendment claim moot. Don Firenze v. National Labor Relations Board.
The NLRB is considering overturning its 2004 Oakwood Care Center decision, which holds that a main employer and staffing agency must approve of an election covering temporary workers and regular employees in order for the election to take place. If the Board reverses course, it would likely follow the standard set in the 2000 decision, M.B. Sturgis, which held that temporary workers provided by a staffing agency may be included with regular employees if they had a sufficient “community of interest.” The Board has requested amicus briefs on the matter.