• During the 2012 fiscal year, the NLRB issued 341 decisions. Of the 341 cases, 277 involved Unfair Labor Practices (ULPs) and 64 involved representation cases. The Board resolved nine of its 10 oldest cases, including a case that had been pending before the Board for 3,396 days. According to the Board, the number of pending cases at the end of the 2012 fiscal year was at a “historic low” of only 147 pending cases.
  • The NLRB held that employer Karl Knauz Motors Inc. lawfully terminated an employee for Facebook posts the employee made concerning an accident on the respondent’s premises. At issue in the case were two posts by the employee, the first post was a picture of a car accident that occurred on the defendant’s Land Rover car lot, and the second was a post complaining that defendant served hot dogs at a BMW sales event. The Board held that the post concerning the car accident was sufficient to justify the termination, and wholly unrelated to any rights safeguarded by the National Labor Relations Act (NLRA or Act). The Board therefore did not address whether the second post, concerning what the employee argued was a poor marketing event which potentially impacted his commissions, could be construed as concerted activity relating to the terms and conditions of his employment. Karl Knauz Motors, Inc.
  • An NLRB Administrative Law Judge (ALJ) held that EchoStar’s social media policy, which prohibited employee access to social media during working hours, violated the NLRA. EchoStar employees challenged the following two rules found in the company social media policy: “a prohibition on disparaging or defamatory comments about [the Company], its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services” and a ban on participating “in these activities with EchoStar resources and/or on Company time.” The ALJ concluded that both rules violated the NLRA by chilling lawful Section 7 activities. EchoStar Techs. LLC.
  • A U.S. Bankruptcy Court judge approved Hostess Brands Inc. proposed CBA with the Bakery, Confectionery, Tobacco Workers & Grain Millers International Union, which included an 8 percent wage concession, and other cuts to employee benefits. The union had rejected Hostess’ proposed terms earlier this year. However, the court ruled that the terms were necessary to keep Hostess afloat, and were the only terms under which the company’s lenders will fund its Chapter 11 bankruptcy.
  • The NLRB ruled that Ampersand Publishing, the publisher of the Santa Barbara News-Press violated the NLRA by hiring a non-unit reporter to freelance for special investigative reporting assignments. The Board held that the company had a duty to provide the union with notice and an opportunity to bargain before assigning the freelancer duties which could be performed by bargaining unit reporters. The Board ordered the publisher to make the union whole for expenses it incurred due to the company’s “willful defiance of its statutory obligations.” Ampersand Publishing, LLC.
  • The Court of Appeals for the Fifth Circuit reversed a Northern District Court of Texas judge’s ruling which had permanently enjoined the National Mediation Board (NMB) from conducting a representation election for American Airlines’ passenger service employees. The district court had ruled that the NMB’s order directing an election could not proceed because 50 percent of the work group did not sign authorization cards approving the election. The Fifth Circuit, however, remanded the case ordering that the district court dismiss American’s complaint for lack of subject matter jurisdiction because judicial review of NMB decisions is appropriate only where there is a “plain violation of an unambiguous and mandatory provision of the statute” or where the board has committed “egregious error.” American Airlines, Inc. v. Nat’l Mediation Bd.
  • The NLRB held, in a 2-1 decision, that Marriott International, Inc. interfered with employees’ rights by prohibiting off-duty employees from returning to the hotel premises outside of working hours. The specific rules at issue barred off-duty employees from returning to the hotel interior or using hotel facilities without a supervisor’s permission. The Board held that Marriott’s rules violated Section 8(a)(1) of the Act because they lead employees to believe they could not engage in concerted activity without management consent and approval. Member Hayes dissented, arguing that Marriott’s policies did not violate the Act because they did not treat NLRA-protected activity differently than any other activity. Marriott Int’l., Inc.
  • The Board recently held that a New York asphalt company, Cofire, violated Section 8(a)(5) of the NLRA when it unilaterally ceased pension and annuity contributions to an ousted union while it and the employees’ newly chosen union negotiated new terms to the parties’ CBA. After the company’s employees ousted Laborers’ International Union of North America (LIUNA) in favor of the United Plant & Production Workers Union Local 175, the union proposed that the parties sign a memorandum of understanding that would maintain the terms of the expired LIUNA contract until the parties reached a new agreement. Cofire refused to sign the Memorandum of Understanding (MOU), and ceased making pension and annuity contributions. The Board held that Cofire was in violation of NLRA Section 8(a)(5) because it failed in its obligation to continue the in effect agreements on mandatory subjects of bargaining until the parties negotiated a new agreement or bargained in good faith to the point of impasse. Cofire Paving Corp.
  • The Court of Appeals for the Third Circuit held that the IBEW violated Section 8(b)(4) of the NLRA when it conducted an illegal secondary boycott. According to the circuit court, the IBEW conducted pickets at U.S. Information Systems Inc.’s project at an Ernst & Young office in New Jersey in an effort to convince another company that conducted business with U.S. Information Systems to award work to a different union affiliate. The court held that “[b]ecause the purpose of [the union’s] picketing was to induce a neutral third party to cease doing business with Systems,” the company was entitled to judgment as a matter of law and $180,000 in damages. U.S. Info. Sys., Inc. v. Int’l Bhd of Elec. Workers Local 164.
  • The Board held that Carr Finishing Specialties Inc., a New York construction firm, violated the NLRA when it failed to timely cancel agreements it had entered into with the Bridge, Structural and Ornamental Iron Workers, yet also refused to apply the agreements to its employees. Carr had entered into multiemployer bargaining agreements with the Iron Workers in 1997, but in October 2008 it ceased applying the agreements to its employees. However, Carr failed to inform the Iron Workers that it was repudiating the contracts. Therefore, the contract’s automatic extension clauses remained in effect and, according to the Board, Carr was bound to the 2006-2009 and 2009-2012 bargaining agreements with the Iron Workers. Carr Finishing Specialties, Inc.
  • The Court of Appeals for the Eleventh Circuit rejected a decision by the NLRB that held licensed practical nursing (LPN) team managers at a Florida nursing home were not supervisors under Section 2(11) of the NLRA. The Board had certified the nurses bargaining unit, and included in the unit nursing team managers, after concluding that these managers did not constitute supervisors because they did not exercise independent judgment over employees who reported to the LPNs. The Eleventh Circuit reversed the Board’s decision, holding that the Board ignored substantial evidence in the record that proved the LPNs evaluated employees’ performance, and could recommend subordinates for suspension and firing, thus sufficiently acting as supervisors under Section 2(11). Lakeland Health Care Assoc. v. NLRB.
  • The NLRB held that Station Casinos in Las Vegas committed more than 80 unfair labor practices during a 2010 UNITE HERE organizing campaign. Station Casinos operates 18 casinos off the strip in Las Vegas. During the 2010 organizing campaign, the union filed almost 200 unfair labor practice charges alleging NLRA violations including surveillance, intimidation, discrimination, threats, and terminations of workers for union activity. All of the charges were consolidated into one complaint, heard by an ALJ, who determined the union committed 82 ULPs. The Board then affirmed almost all of the ALJ’s findings. Station Casinos, LLC.
  • An Indiana state trial court has ruled that the United Steelworkers may challenge the constitutionality of the Indiana right-to-work legislation passed earlier this year. The union brought the lawsuit against Indiana Governor Mitch Daniels and other state defendants, arguing that the law was unconstitutional. The defendants filed a motion to dismiss arguing that the union’s challenge was not ripe for determination. However, the court ruled that the union’s challenge requesting a declaratory judgment that the law violates the state constitution is ripe for determination, and therefore denied the defendants’ motion to dismiss. United Steelworkers v. Daniels.
  • Seattle-Tacoma International Airport aircraft refueling workers have been enjoined by a federal court judge from striking or taking any other actions that would have the effect of shutting down the airport. The federal district court judge found that the Railway Labor Act prohibits Aircraft Service International workers from striking before they engage in dispute resolution procedures with their employers. Aircraft Serv. Int’l, Inc. v. Int’l Bhd. Of Teamsters Local 117.
  • IronTiger Logistics Inc., a transportation company, violated the NLRA when it refused to respond to a union inquiry for irrelevant information, according to a recent Board decision. The union requested information regarding union-represented employees. The company, believing that the information was irrelevant, ignored the union’s request and waited more than four months to inform the union that it would not provide the information. The Board held that “an employer must timely respond to a union request seeking relevant information even when the employer believes it has grounds for not providing the information.” IronTiger Logistics, Inc.
  • The NLRB Division of Advice issued an opinion memorandum evaluating the legality of Charles Schwab Corporation’s requirement that all employees sign a non-solicitation agreement which, in part, prohibits employees during employment and for an 18-month period following the termination of the employment relationship from soliciting co-workers to leave their employment with Schwab. The memorandum concludes that nothing in Schwab’s non-solicitation agreement restricts employee rights under the NLRA, and therefore employees could not reasonably interpret the agreement as restricting their statutory rights.
  • The failure of American Water Works Co. of Voorhees, N. J. to notify any state agency of the existence of a labor dispute between the company and the Utility Workers Union of America before implementing the terms of its last, best, and final offer violated the NLRA according to a recent ALJ decision. Specifically, the ALJ held that the company violated Sections 8(a)(1) and (5) when it illegally modified the terms of the parties’ agreement without complying with Section 8(d)(3) notification requirements. The ALJ therefore ordered the company to make employees whole for any losses they suffered as a result of the illegal unilateral amendments to the contract. American Water Works Co.
  • A Board ALJ recently concluded that a Boeing Human Resources manager interfered with an employee’s NLRA rights when she told him that he could not discuss union activity or organizing on company time. The ALJ held that because Boeing permitted the union employee to discuss personal topics including family, sports, and health, during the work day, it cannot prohibit him from discussing union activity. The ALJ relied on Jensen Enterprises Inc., 339 NLRB 877 (2003), which held that “an employer violates the Act when employees are forbidden to discuss unionization, but are free to discuss other subjects unrelated to work…” Boeing Co.
  • NLRB Acting General Counsel Lafe Solomon released an analysis of at-will employment clauses in two employee handbooks, finding that both provisions are lawful under the NLRA. Charges filed with the Board claimed that the handbooks, which were distributed by a California trucking company and a restaurant in Arizona, defined at-will employment so broadly that employees would reasonably think they could not engage in activity protected by the NLRA. However, the Board found that the clause in the Rocha Transportation handbook, which advised drivers that “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will,” and that “[o]nly the president of the Company has the authority to make any such agreement and then only in writing” did not violate the NLRA because it explicitly states that the employment relationship can be changed. The memo also concluded that the Mimi’s Café handbook, which describes at-will employment as “No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship” does not violate the NLRA because the clause does not require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.