• The U.S. Court of Appeals for the First Circuit ruled that the U.S. Postal Service did not necessarily commit an unfair labor practice when it declined to provide the National Postal Mailhandlers Union with 22 employees’ psychological aptitude test scores, which the union requested in order to investigate a bargaining unit dispute. But the court also held that notices informing employment applicants that personal information would remain confidential under the Privacy Act but could be disclosed “as required by law” did not remove all expectations of privacy. Denying an enforcement petition from the National Labor Relations Board (NLRB or Board), the court remanded and directed the Board to sufficiently balance the union’s interest in the information with the employees’ legitimate and substantial privacy interest in their test scores. NLRB v. USPS.
  • A federal judge for the Central District of California denied the request of the Painters and Allied Trades District Council 36 for a preliminary injunction blocking implementation of a San Clemente, Calif., ban on targeting residential picketing. The judge found that the challenged law was a “time, place, and manner” restriction of the sort the U.S. Supreme Court has upheld, because it was narrowly tailored, served a significant government interest, and left open ample alternative channels of communication. As a result, the ban did not violate the protesters’ First Amendment rights. However, the judge made clear that union members could continue to protest as long as they did not position themselves only in front of a one particular residence, which the law prohibits. Painters and Allied Trades Dist. Council 36 v. San Clemente.
  • The Washington Court of Appeals ruled that an arbitrator violated the state’s “well-defined, explicit, and dominant” public policy against race discrimination by reducing the discipline imposed on a Port of Seattle worker who was fired for hanging a noose in the workplace after a “falling out” with a black coworker. The Port decided that the employee engaged in “gross misconduct” in violation of its “zero tolerance” anti-harassment policy and fired him. However, upon union grievance, the arbitrator reduced the discipline to a 20-day suspension and ordered reinstatement with lost pay and benefits. The appeals court affirmed the lower court’s order vacating the arbitration award based on a finding that the public interest in the finality of arbitration awards under union contracts must yield to a countervailing strong public policy against race discrimination, found in a state law, that requires employers to take affirmative steps to eliminate and prevent racial harassment. Int’l Union of Operating Engineers Local 286 v. Port of Seattle.
  • A federal district court denied the State of Arizona’s motion to dismiss an NLRB lawsuit alleging that a state constitutional amendment guaranteeing a right to vote by secret ballot on issues of union representation is preempted by federal labor law. The amendment passed in December 2010, alongside similar amendments in South Carolina, South Dakota, and Utah. The NLRB filed the Arizona lawsuit on May 6, 2011, asserting that all four states’ amendments are preempted. The court rejected the state’s argument that the NLRB lacked standing to challenge the amendment, because it found that if the state law is preempted by the NLRA, the Board’s exclusive authority to protect employee rights guaranteed by the Act has already been compromised by the amendment’s creation of a “parallel enforcement mechanism.” In addition, the court rejected Arizona’s argument for dismissal based on lack of subject matter jurisdiction, finding that although the NLRA does not expressly authorize a lawsuit challenging a state law, the U.S. Supreme Court has recognized the NLRB’s authority to seek traditional remedies not spelled out in the Act. NLRB v. Arizona.
  • An arbitrator found that a 2007 merger agreement between the United Transportation Union (UTU) and the Sheet Metal Workers was enforceable. Several UTU leaders have resisted the merger since shortly after the agreement was signed, arguing that former union leaders had misrepresented the effect of the merger on provisions in the UTU constitution regarding craft autonomy and general committee autonomy. An arbitrator found, however, that the merger was “properly approved,” and that the UTU had not borne its burden of proof regarding alleged misrepresentations. The arbitrator thus found that the merger should be implemented “on the earliest possible date” and directed the union presidents to meet to discuss implementation. In re Sheet Metal Workers Int’l Ass’n and United Transp. Union.
  • In a 2-1 decision, the Board held that, following a confrontation over disputed layoff procedures, a New York hotel acted lawfully when it terminated three employees who grabbed and pushed a manager, but acted unlawfully when it disciplined 10 other workers who participated in the encounter. In 2004, the New York Hotel & Motel Trades Council was certified to represent hotel employees. However, by November 2008 the hotel and union still had not negotiated a contract. The employer then announced that declining business required reduction in staff expenses and proposed an across-the-board cut in hours. The union sponsored a rally, which led to the confrontation at issue. Although an administrative law judge had found that all 13 employees involved lost the NLRA’s protection, the Board found that only those who deliberately touched the manager acted outside the Act’s bounds. In dissent, Member Hayes found that the actions of every employee who participated in the encounter “went well beyond what should be expected or tolerated in the workplace, and accordingly, what the Act should protect.” LaGuardia Assocs. LLP d/b/a Crowne Plaza LaGuardia.
  • A federal district court in Washington assessed $250,000 in compensatory damages against two International Longshore and Warehouse Workers Union locals for violating a temporary restraining order and preliminary injunction entered to halt violent protests at a Washington port facility. The judge held the unions in contempt for violating the orders, entered in response to the NLRB’s request for injunctions to prevent the locals from continuing to violate the rights of employees and neutral employers. Finding that the unions engaged in a “litany of strike line misconduct” including vandalism and property damage, even after the court issued injunctions, the judge found that the award was appropriate for damages caused during the demonstrations. Ahearn v. Int’l Longshore & Warehouse Union Local 21.