The NLRB ruled in a 3-1 decision that unions seeking to organize employees in bargaining units that combine both temporary workers supplied by a staffing company, and the regular employees employed by the user employer, are not required to obtain employer consent to proceed to an election for a group of workers employed by two different companies. In so holding, the Board overturned its 2004 holding in Oakwood Care Center and returned to the rule it established in 2000 in M.B. Sturgis, Inc. For more details, see our client briefing, NLRB Eases Standard for Unionizing Employees Jointly EmployedMiller & Anderson, Inc.

Overruling nearly a decade of Board precedent, the NLRB ruled that an employer could be found to have violated the NLRA by failing to inform the union that it did not possess requested information, despite the lack of any allegation to that effect in the underlying unfair labor practice complaint. The Board reversed an Administrative Law Judge’s (ALJ) decision finding that an employer did not violate the NLRA by failing to timely inform the union that information the union requested about the employer’s rule and policy changes did not exist because the Board’s complaint did not include an unfair labor practice allegation to that effect. Overruling its Raley’s Supermarket decision, the Board held that where the unstated violation is so “closely related” to charge allegations and the matter is fully litigated, the Board may consider the unstated violation. The Board also explained that it is not confined to the contents of the complaint in making a determination, as it may also consider notice provided by the Board’s general counsel at a hearing or the respondent’s conduct in the hearing. Graymont PA, Inc.

In a divided decision, the NLRB ruled that Colorado Fire Sprinkler Inc. violated the NLRA by unilaterally ceasing its employee benefit fund contributions, and implementing a new health insurance plan when its collective bargaining agreement with Road Sprinkler Fitters Local 669 expired. In so holding, the Board reversed the ALJ’s holding that the unfair labor practice charge was untimely. The Board reasoned that the first payment date missed following the expiration of the labor contract was within the Act’s six-month filing period, underscoring the Board’s view that the filing period begins when an unfair labor practice actually occurs, as opposed to when an employer merely notifies the union that it intends on committing an unfair labor practice. Member Miscimarra dissented, agreeing with the fire sprinkler company that the bargaining relationship was covered by Section 8(f) of the Act, which allows a construction industry employer to enter a prehire agreement without there being a union majority and to refuse to bargain following the agreement’s expiration. The Board majority ruled that Section 9(a) of the Act, which requires an employer to bargain with the union past the labor contract’s expiration, governed the bargaining relationship because the labor agreement stated that the parties had a Section 9(a) relationship. Colo. Fire Sprinkler Inc.

The Board unanimously held that Los Angeles restaurant Daily Grill could not prohibit employees from wearing union buttons on their uniforms in an effort to re-create the ambience of a traditional American grill. While special circumstances may exist to support a ban when union insignia interferences with the image an employer has cultivated, the Board found that the restaurant presented no evidence that the buttons, which were one inch in diameter, harmed the restaurant’s image. The Board ordered the restaurant, operated by Grill Concepts Services Inc., to rescind the ban and make aggrieved employees whole. Grill Concepts Servs.

The Board held that the International Union of Operating Engineers Local 302’s petition for a secret ballot election at a Yakama, Wash. gravel mine was barred because the mining facility was the continuation of a partially closed facility that was covered by a collective bargaining agreement with Teamsters Local 760. It found that there was a sufficient continuity of operations at the new mine, despite the continued employment of a single driver at the partially closed mine. The Board emphasized that the mining outfit halted all excavation efforts at the former mine and transferred all mining equipment and miners to the new facility. CPM Dev. Corp.

The Board ruled that an electrician engaged in concerted, protected activity when he mistakenly contended he was owed higher pay under a collective bargaining agreement he believed was in place between lighting contractor Omni Commercial Lighting and the International Brotherhood of Electrical Workers. The electrician was discharged after he complained that he was entitled to higher pay and benefits, mistakenly believing that the lighting company’s labor contract contained the same pay structure found in a collective bargaining agreement of the electrician’s former employer. Finding this complaint was concerted, protected activity, the Board majority reasoned that an individual’s reasonable, even if mistaken, assertion grounded in a collective bargaining agreement is protected, concerted activity. Member Miscimarra dissented, stating that the electrician invoked no right grounded in his actual collective bargaining agreement. Omni Commercial Lighting, Inc.

In a 2-1 decision, the Board ordered a new union representation election after a Board agent who supervised the election for special police officers working for Longwood Security Services Inc. improperly prevented a nonemployee official of the United Government Security Officers of America International Union Local 365 from observing the proceedings, which the union lost by a 30-26 vote. The Board majority ruled that under its decision in Browning-Ferris, when a Board agent is aware that a party intends to use a potentially objectionable observer, the election should proceed with the observer after the agent advises both parties that the election may later be set aside if an objection is filed and the observer was not reasonable. The Board also found that the denial of the union official’s request breached the stipulated election agreement, which provided that each party may station an equal number of authorized, nonsupervisory-employee observers at the polling place. Member Miscimarra dissented, arguing that the exclusion of the high-ranking union official preserved the employees’ freedom of choice. Longwood Sec. Servs. Inc.

A split Board held that chemical products distributor Nexeo Solutions LLC unlawfully failed to bargain with the Teamsters when it made it “perfectly clear” it intended to retain the union-represented employees of Ashland Distribution, which Nexeo acquired. The Board majority ruled that it was clear from the purchase agreement that Nexeo intended to offer all the employees new jobs, and noted that Ashland’s then-president told employees that Nexeo intended to retain all employees. The Board majority rejected Nexeo’s argument that Ashland’s statements should not be imputed to Nexeo, reasoning that Nexeo failed to disavow such statements. Because Nexeo made it perfectly clear it planned to retain all unit employees, it was required to bargain with the Teamsters before changing the employees’ health benefits and stopping contributions to the union-sponsored pension fund. Dissenting member Miscimarra stated that the panel majority improperly relied on statements by Ashland to find that Nexeo intended to retain employees and stating that nothing in the NLRA requires successor employers to monitor their predecessors’ communications. Nexeo Solutions, LLC.

On remand from the United States Court of Appeals for the District of Columbia Circuit, a unanimous Board held that a regional director retained power under a consent agreement signed by Hospital of Barstow and the California Nurses Association/National Nurses Organizing Committee to process a representation election case and certify a bargaining representative while the Board lacked quorum during 2012 and 2013. The appeals court had rejected similar arguments in cases involving stipulated election agreements, but had yet to consider consent agreements, which made the regional director’s election-related actions final and unreviewable by the Board. Because the parties, and not the Board, agreed to make the regional director’s decisions final, the Board ruled that its loss of quorum had no effect on the regional director’s authority pursuant to the consent agreement. Hosp. of Barstow, Inc.

The NLRB held that assembly line designer and installer Comau Inc., a Fiat Group Company, unlawfully failed to bargain with Wisne Automatic Employees Association over the effects of a temporary plant shutdown and transfer of employees to nearby plants. Although the employer notified the Michigan union within a day of learning that Fiat was temporarily closing its facility, the Board ruled that no advance notice was given to the union nor did the union have an opportunity to bargain over the transfer of employees. The Board majority rejected the notion that Comau engaged in effects bargaining when it granted the union’s request to switch the transfer assignments of two employees, finding that this single concession did not support a finding that the parties engaged in meaningful effects bargaining. The Board also found that the employer violated the NLRA when it unilaterally applied local plant rules instead of the collective bargaining agreement. Comau, Inc.

An NLRB Administrative Law Judge ruled that AT&T subsidiary Wisconsin Bell Inc. violated the NLRA by prohibiting its core technicians from wearing union buttons that stated “WTF AT&T,” identified Communications Workers Local 6422, and stated “”Where’s the Fairness.” AT&T justified the insignia ban by claiming that customers would interpret “WTF” to mean “what the f---,” which would harm the company’s customer relationships. The ALJ ruled that any suggestion of the vulgarity of “WTF” was negated by the inclusion of “Where’s the Fairness” on the buttons, which were less than two inches in diameter. The ALJ also noted that the company failed to present any evidence that customers interpreted the “WTF” to be profane, that there were any complaints, or that the buttons harmed customer relationships. Thus, the ALJ ruled that special circumstances did not exist to support the ban. However, the ALJ dismissed a claim that the company implemented appearance guidelines without bargaining with the union, reasoning that the union passed up repeated opportunities to discuss the maintenance and implementation of the standards. Wisconsin Bell, Inc.

An NLRB Administrative Law Judge ruled that Casino Pauma violated the NLRA by maintaining handbook rules prohibiting employees from conducting “personal business” while they were at work, and providing that employees had to immediately cease any solicitation or distribution that caused an intended recipient to “experience any discomfort or nonreceptiveness whatsoever.” The ALJ reasoned that the NLRA gives employees the right to engage in union solicitation on the employer’s premise during nonworking time and to distribute literature in nonworking areas. Because the California casino’s rule was not restricted to work time, it was overbroad. Further, under Board precedent in Ryder Truck Rental, the ALJ ruled that employees have a right to engage in solicitation even when it annoys or disturbs the employees being solicited. Casino Pauma was ordered to rescind the rules and issue a revised handbook. Casino Pauma.