• The Court of Appeals for the Fourth Circuit became the third federal appellate court to find President Obama’s January 2012 recess appointments to the National Labor Relations Board (“NLRB” or “Board”) unconstitutional, holding that recess appointments may only be made during an intersession recess of the Senate. The D.C. Circuit and the Third Circuit had previously found that intrasession recesses, which occur during a Senate session, are not recesses for purposes of the Appointments and Recess Appointments Clause. Because President Obama’s appointments were found to be made during an intrasession recess, they were invalid. Consequently, the Fourth Circuit found that the NLRB did not have a quorum to issue the underlying decisions upon appeal. The issue of the validity of President Obama’s appointments is currently in front of the Supreme Court. NLRB v. Enterprise Leasing Co. Southeast LLC; Huntington Ingalls Inc. v. NLRB.
  • The Court of Appeals for the Eighth Circuit affirmed an arbitrator’s decision reinstating a nurse with back pay at Lee’s Summit Medical Center, despite the fact that the NLRB decertified the union representing the nurse’s bargaining unit during the arbitration process. The Eighth Circuit found that the arbitrator had not exceeded his contractual authority because the parties stipulated that the arbitrator was to determine whether the hospital had just cause to discharge the nurse and the parties jointly submitted the matter to the arbitrator after the decertification. Additionally, the parties’ collective bargaining agreement authorized arbitration of matters arising prior to its expiration. The court found that so long as the agreement authorized remedies after expiration for matters arising prior to expiration, the expiration itself did not bar the arbitration. Midwest Div.-LSH LLC d/b/a Lee’s Summit Med. Ctr v. Nurses United for Improved Patient Care.
  • The Court of Appeals for the Sixth Circuit ruled, 2-1, that charge nurses were supervisors not permitted to unionize, vacating a NLRB decision ordering a nursing home operator to bargain with the International Association of Machinists and Aerospace Workers (“IAMAW”). The Sixth Circuit found that the charge nurses had authority and used independent judgment when determining whether to discipline, assign work to, and direct certified nursing assistants. The majority noted that the NLRB’s interpretation of discipline required an immediate adverse employment action, which conflicts with the definition of discipline in the National Labor Relations Act (“NLRA”). GGNSC Springfield LLC d/b/a Golden Living Ctr.-Springfield v. NLRB.
  • The NLRB ruled that Alamo Rent-A-Car violated the NLRA by tainting an employee decertification process while withdrawing recognition from the Teamsters local union that represented workers at the Miami International Airport. Alamo withdrew short-term disability benefits for employees just before workers signed a petition decertifying the union, telling employees that it was ending the benefit because of their union contract. The NLRB found that employees would reasonably believe the benefit was taken away because of their union representation. The NLRB also held that the decertification process was tainted when a supervisor promoted the effort by telling a worker who supported the decertification petition to get more signatures. The NLRB held that the decertification process and the employer’s withdrawal of recognition were unlawful, as well as the employer’s subsequent unilateral changes to wages and benefits. Alamo Rent-A-Car.
  • The NLRB concluded that the California Nurses Association violated the NLRA when it printed information about workers’ Weingarten rights—which address the right to have a union representative present during meetings with management that could lead to discipline—on the back of copies of the collective bargaining agreement that it distributed to employees. The NLRB found that the hospital, Henry Mayo Newhall Memorial Hospital, had not consented to the language and that the issue had not been discussed during the negotiations. Additionally, the union, which represents 86,000 members nationally, had previously added the statement to copies of an earlier agreement, which resulted in a similar unfair labor practice charge that was withdrawn after the parties entered into a settlement agreement that required the union to reprint the agreement without the statement. California Nurses Association, National Nurses Organizing Committee and Henry Mayo Newhall Memorial Hospital.
  • The Court of Appeals for the Ninth Circuit upheld a damages award to the NLRB and a grain terminal operator, finding that the $100,000 award for a union’s contempt of court was not precluded by Section 303 of the Labor-Management Relations Act (“LMRA”). The underlying dispute related to union jurisdiction over work performed at the grain terminal. The International Longshore and Warehouse Union (“ILWU”) members believed they should be performing work being performed by International Union of Operating Engineers members. The ILWU began picketing the terminal, the operator filed unfair labor practice charges, and the NLRB filed a federal court petition for injunctive relief. The U.S. District Court for the Western District of Washington issued a temporary restraining order, but the NLRB alleged that ILWU members picketed, blocked a train from delivering to the terminal, and damaged terminal property, among other offenses. The court awarded damages to the NLRB and grain terminal operator for the union’s violation of the temporary restraining order. The Ninth Circuit affirmed, finding that the NLRB and employer were not precluded from receiving civil contempt damages by the LMRA and that the district court had evidence to support the damages award. Ahearn v. Int’l Longshore & Warehouse Union Local 21.
  • The NLRB found that Albertsons LLC, a retail food store, unlawfully solicited grievances from a worker during an organizing campaign by United Food and Commercial Workers Union. Albertsons argued there was no unlawful interference with employee rights where the employee did not respond to the solicitation with complaints. The NLRB found, however, that the solicitation was coercive because employees could believe the employer was promising to remedy the grievances. The NLRB also held that Albertsons violated the NLRA when its attorney questioned a different employee without assurances against reprisals for refusing to answer or for any answers given, even though the employee had previously been interviewed by attorneys and given the required assurances. Albertson’s LLC.
  • The Second Circuit denied a petition to review an NLRB decision finding that employees were precluded from receiving back pay in an unfair labor practice proceeding because they were undocumented immigrants when they were terminated. The employer had argued that the Supreme Court decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) precluded reinstatement or back pay to employees who did not have work authorization. The NLRB held that it could not award back pay in such a situation, even when the facts demonstrated that it was the employer, not the employee, that violated the immigration laws. The Second Circuit remanded a portion of the case to the NLRB to determine whether the workers should be granted reinstatement upon obtaining work authorization. Palma v. NLRB.
  • The Court of Appeals for the Ninth Circuit, reversing the district court, found that a container ship operator, American President Lines Ltd., could pursue an action under the LMRA against a union for illegal secondary objectives, even though the operator did not exhaust its options for vacating an arbitration award. The ILWU filed a grievance against the operator based on work jurisdiction, and an arbitrator found for the union. The operator filed an unfair labor practice charge with the NLRB, arguing that the union’s grievance violated the NLRA by attempting to force the operator from doing business with another company. The charge was dismissed, and the operator filed suit under the LMRA, which authorizes actions for damages caused by union violations of the NLRA. The Ninth Circuit found that even though the operator had not filed a timely petition to vacate the arbitration award, that failure did not preclude the operator from filing suit under the LMRA. Am. President Lines Ltd. v. Int’l Longshore & Warehouse Union.
  • The Court of Appeals for the First Circuit held that private equity funds may qualify as a trade or business under the Multiemployer Pension Plan Amendments Act, such that the fund may be liable for an employer’s multiemployer pension plan withdrawal liability . The two private equity funds held a 100 percent interest in the employer, which was assessed a withdrawal liability of more than $4.5 million when it withdrew from the multiemployer pension plan and declared bankruptcy. The pension plan tried to assess joint and several liability against the two private equity funds, arguing that they were trades or businesses under common control with the employer. The district court found the funds were not liable because their involvement with the employer was as passive investments and was “not sufficiently continuous or regular” to attach liability. The First Circuit disagreed, giving deference to an opinion letter promulgated by the Pension Benefit Guaranty Corporation and finding that one of the funds was actively involved in the employer’s management. That fund was determined to be a trade or business. As to the other fund, however, the First Circuit remanded the case to the district court for factual analysis. Sun Capital Partners III, LP v. New England Teamsters & Trucking Indus. Pension Fund.
  • The Illinois Appellate Court granted a temporary restraining order against union picketers who targeted a funeral home management company, reversing a lower court’s denial of the temporary restraining order. After unsuccessful labor contract negotiations, 59 funeral drivers and directorsmembers of the Teamsters, went on strike for 25 days and allegedly engaged in intimidating picketing tactics, including taunting funeral attendees with a bullhorn, blocking a widow’s car in a funeral home parking lot, and creating disturbances at the entrance of a funeral home. The Teamsters represent more than 6,800 funeral directors and embalmers in Chicago. SCI Ill. Servs. Inc. v. IBT, Local 727.
  • The NLRB ruled that Boeing Co.’s human resources policy directing witnesses in workplace investigations to keep such matters confidential violated the NLRA. The NLRB found that blanket confidentiality rules regarding workplace investigations are unlawful under current Board precedent, as they infringe on employees’ rights to engage in concerted action and discuss the terms and conditions of employment. Even where a policy “recommends” rather than “directs” that employees not discuss workplace investigations with other employees, the policy is overbroad and unlawful. The Boeing Co.
  • An NLRB advice memorandum determined that a social media policy prohibiting employees from taking videos or pictures of the workplace violated the NLRA. The NLRB advised that employees would reasonably interpret the prohibition as preventing them from sharing pictures and videos about their Section 7 activities through social media. Additionally, the social media policy violated the NLRA by prohibiting disclosure of confidential, non-public information and use the company’s logo, trademarks or graphics. According to the Division of Advice, because the term “non-public information” was vague, employees could reasonably think they were prohibited from sharing information about working conditions. Employees could also believe that the rule prohibiting the use of the employer’s logo would bar its use on Section 7 communications, such as leaflets or cartoons.
  • The National Mediation Board (“NMB”) will hear challenges to signatures submitted by the Teamsters in support of a representation election at American Airlines. The Transport Workers Union claims that the Teamsters admitted that it submitted forged signatures with respect to its election campaign among mechanics and related workers. The Teamsters denied the claim.