The U.S. Court of Appeals for the D.C. Circuit affirmed an NLRB decision that two Las Vegas airport restaurant workers did not suffer arbitrary discrimination when the Culinary Workers Union, Local 226, and the Bartenders Union, Local 165, denied their over-the-phone requests for the dates they signed their dues-check off authorization cards. The workers argued that the unions’ requirement that such requests be submitted in writing discriminates against members who wish to leave the unions, since members must have their authorization dates to quit. The NLRB found the policies reasonable in light of privacy and efficiency concerns. Ruisi, et al. v. NLRB.
The D.C. Circuit upheld the NLRB’s decision that Wilkes-Barre Hospital Company violated the NLRA by unilaterally ending longevity-based pay increases to union-represented nurses upon the expiration of a collective bargaining agreement. The court held that an employer cannot unilaterally change the terms and conditions of employment while it is bargaining with a union to replace an expired contract. The circuit court determined that the hospital had not reached an impasse or a new agreement with PASNAP, and had therefore violated the NLRA by unilaterally ending the pay increases. The court found that the nurses are entitled to back pay plus interest dating back to January 2014. Wilkes-Barr Hospital Co. v. NLRB.
The D.C. Circuit remanded an NLRB decision that Hawaiian Dredging Construction Co. illegally fired 13 members of Boilermakers, Local 627, because of their union membership, in violation of the NLRA. The court held that the NLRB did not adequately consider the Administrative Law Judge’s (ALJ’s) finding that Hawaiian Dredging’s conduct was consistent with its longstanding, 20-year practice of not employing construction craft workers in the absence of a union contract. Hawaiian Dredging Construction Co. v. NLRB.
The Ninth Circuit held that retired American Airlines and American Eagle Airlines workers who accepted buyouts from the airlines failed to show that the TWU violated its duty by not awarding them stock that was later distributed to union members in exchange for labor cost concessions negotiated while the airlines were in Chapter 11 bankruptcy. The court found that the retired workers failed to provide evidence that the TWU acted arbitrarily or in bad faith, or that it discriminated against them by waiting to develop a stock distribution plan until after the airlines merged with U.S. Airways Group Inc., when the value of the company’s stock became clearer. Demetris v. Transportation Workers.
The U.S. Court of Appeals for the Seventh Circuit ruled that a union-represented cemetery employee could bring a Fair Labor Standards Act (FLSA) claim without exhausting grievance procedures set out in the employee’s collective bargaining agreement. Following Supreme Court precedent, the circuit court reasoned that a collective bargaining agreement can waive union-represented workers’ statutory right to sue, but only if the agreement explicitly states that workers must resolve such claims through a grievance or an arbitration process. The employee’s contract did not contain a clear statement to that effect. Vega v. New Forest Home Cemetery, LLC.
The Sixth Circuit affirmed an NLRB holding that Alternative Entertainment, Inc., a satellite television provider, violated its employees’ right to engage in concerted activity for mutual aid or protection when it required them to sign arbitration agreements that waived their right to pursue job-related class or collective actions against the company. The Sixth Circuit joins the Seventh and Ninth Circuits in endorsing the NLRB’s position on class waivers. The Fifth and Eighth Circuits have held that the NLRB’s position on class waivers violates the Federal Arbitration Act. The Supreme Court is expected to review the issue. NLRB v. Alt. Entm’t, Inc.
The Third Circuit ruled that union-represented nursing assistants do not have to arbitrate their federal and state unpaid overtime claims against a New Jersey assisted living facility, despite language to the contrary in their collective bargaining agreement’s arbitration clause. The court held that absent a “clear and unmistakable waiver” in the agreement of the right to pursue the claims in court, a court cannot compel arbitration of claims that do not depend on the disputed interpretation of a contract provision. Because the nursing assistants did not explicitly waive their right to sue on FLSA or state law wage-and-hour claims, the court held that they may pursue their claims for alleged miscalculated overtime and unpaid interrupted meal breaks in court. Jones v. SCO Silvercare Ops. LLC.
The Second Circuit upheld an NLRB decision that Whole Foods Market Group, Inc. illegally prohibited employees from electronically recording conversations without management approval. Upholding the NLRB’s finding that Whole Food’s intent to promote “spontaneous and honest dialogue” did not justify the overbroad rule, the court instructed Whole Foods to narrow the scope of its rule, noting that the NLRA does not preclude all workplace recording policies. Whole Foods Mkt. Grp., Inc. v. NLRB.
The Southern District of New York struck down a New York City law that permitted car washes that entered into collective bargaining agreements with workers to pay less for business licenses than businesses that do not engage in collective bargaining. Under the Car Wash Accountability Law, car washes that did not operate under a collective bargaining agreement were required to post a $150,000 surety bond to obtain an operating license. Car washes operating under a collective bargaining agreement and car washes that agreed to monthly pay practice audits by third-party monitors only had to post a $30,000 bond. The court held that the law was preempted by the NLRA, which prohibits state and local governments from intruding on the labor-management bargaining process. Ass’n of Car Wash Owners Inc. v. City of New York.
A federal judge for the District of Massachusetts held that a restaurant server had a right under the Labor-Management Reporting and Disclosure Act of 1959 to inspect contracts between her union, UNITE HERE, Local 26, and 36 employers, but not to take notes about the contracts. In determining that the union lawfully denied the server permission to take notes, the court reasoned that union employees’ statutory right to inspection did not provide an “explicit warrant” for note taking. DOL v. Local Union 26.
A federal judge for the Southern District of Florida issued a temporary restraining order (TRO) against the Air Line Pilots Association International (ALPA), ordering the union to stop interfering with Spirit Airlines’ business. Spirit accuses the union of violating the Railway Labor Act, which prohibits slowdowns and strikes during collective bargaining. The airline has been in contract negotiations with ALPA since February 2015. Spirit Airlines sought the TRO when pilots began refusing overtime and unassigned flying, resulting in 300 flight cancellations, affecting 20,000 customers, and resulting in $8.5 million in lost revenue. Spirit Airlines v. Air Line Pilots Association, International, et al.
The Michigan Court of Appeals held teachers may quit the Michigan Education Association at any time, not just during a one-month window specified in the union’s bylaws. Overturning eight Michigan Employment Relations Commission opinions on the subject, the court determined that the state’s “right to work” laws prohibit enforcement of the restrictive bylaws. Saginaw Educ. Ass’n v. Eady-Miskiewicz.
The NLRB unanimously rejected a petition to revisit the question of whether nonunion employees are entitled to Weingarten rights, which enable union members to insist on having a representative present during investigatory interviews that could reasonably result in employee discipline. The NLRB has changed its stance on the issue several times since the Supreme Court first recognized the rights in 1975. Most recently, in its 2004 IBM Corp. decision, the Board held 3-2 that employers’ interest in conducting “prompt, efficient, thorough, and confidential” workplace investigations outweighed nonunion employees’ rights to representation. In Re: Request for Rulemaking Regarding Reconsideration of IBM Corp.
In a split decision, the NLRB decided to permit Mercedes-Benz International, Inc. to defend its rule against employees using cameras and video recording devices in its Alabama auto plant. Denying the NLRB General Counsel’s motion for summary judgment in a split decision, the majority reasoned that the Board had previously permitted employers to attempt to demonstrate that employees understood that rules forbidding cameras and recording were not meant to prohibit protected activity. The General Counsel argued that the rule interfered with employees’ right to engage in union activity and protected concerted activity for their mutual aid or protection. Mercedes-Benz U.S. Int’l, Inc.
An NLRB ALJ ruled that a railroad car repair company legally fired a worker who subjected a management representative to a vulgar tirade. The ALJ determined that the misconduct was not provoked by unfair labor practices, but rather that it was in reaction to an unwanted work assignment. The ALJ reasoned that the employee may have been engaged in protected, concerted activity when he complained to other employees about the assignment, but he lost the protection of the NLRA because of his insubordinate conduct and the profane statements he directed at management, in a work area, and in the presence of other employees. Harbor Rail Services Company and Eric Schultz.
An NLRB ALJ held that the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229 violated the NLRA by encouraging CMC Rebar employees to join the union’s strike against Western Concrete Pumping Inc. (WCP). The ALJ reasoned that “when a labor organization ‘induces or encourages’ employees of a neutral employer such as CMC to stop working if there is a secondary objective of forcing or requiring the neutral employer to cease doing business with the primary target, in this case WCP,” the conduct violates the NLRA. International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers Local 229 v. Commercial Metals Co.
An NLRB ALJ ruled that Burgerville LLC’s policy prohibiting off-duty employees from “loitering” or “hanging around” company property violated the NLRA. Because the policy’s terms could reasonably be interpreted to prohibit employees from engaging in protected activity, such as hand-billing in the non-work areas of Burgerville’s property, the ALJ determined that the rules were overbroad and ambiguous. An employer may only deny off-duty employees access to the premises if it has legitimate business concerns justifying access restrictions. Burgerville LLC v. Industrial Workers of the World.
An NLRB ALJ held that mine operator Murray Energy Corp. violated federal labor laws by taking several actions against United Mine Workers of America-represented miners at four West Virginia mines. The ALJ reasoned that a foreman’s comment to workers that if they “keep notifying the authorities” about safety issues, “they are going to shut this place down” constituted a threat, in violation of the NLRA. Further, the ALJ found that the foreman’s admonishment that miners did not “need to go to the authorities,” while not explicitly telling miners not to go, constituted coercion under the NLRA. The ALJ also ruled that an employee was illegally threatened with discipline for raising safety concerns. Additionally, the ALJ found that a supervisor engaged in unlawful surveillance by looking in on a union meeting, as he did not merely walk past the union meeting, but rather “stopped to investigate and see what else he could learn.” Murray American Energy Inc. and the Harrison County Coal Co. and United Mine Workers of America District 31, Local 1501.
The NLRB held that CSC Holdings, Inc. and Cablevision Systems New York City Corp. illegally transferred six employees in order to shift the balance at a worksite towards anti-union workers. The Board found that the employer’s stated reasons for the transfers—improving the working environment at the facility, giving the six employees a fresh start, and easing employee commutes—were pretextual. The Board noted that none of the employees had engaged in aggressive behavior that would have supported Cablevision’s explanation and that the transfer actually made some transferred employees’ commutes more difficult. Further, the Board found that Cablevision was closely monitoring employees for signs of unionization since a failed unionization bid by the CWA in 2012, and the transfers took place just one month after the six transferred employees were identified as being pro-union. CSC Holdings LLC and Cablevision Systems New York City Corp. and Andres Garcia and Paul Murray and Bernard Paez.
A split NLRB held that Allways East Transportation Inc., a bussing company, must bargain with Teamsters, Local 445, as a successor to Durham School Services, which it replaced in providing transportation services to Dutchess County, New York’s special education students. The majority reasoned that there was a “substantial continuity of operations” when Allways took over for Durham, as the companies performed the same general business and the bus drivers and monitors they employed performed the same basic jobs for each employer. The majority also found that the former Durham employees were an appropriate bargaining unit, as 62 of the 82 bus drivers and monitors Allways hired were former Durham employees. The Board found no violation in Allways changing employees’ initial wage rates, however, or in its termination of a driver without notifying the union. Allways East Transportation, Inc. and International Brotherhood of Teamsters, Local 445.
The NLRB ordered Missouri-based Hobson Bearing International Inc. to change its confidentiality policies, which prohibited employees from discussing their pay and bonuses and restricted employees’ discussion of proprietary or vital company information. The Board also ordered the company to reinstate an employee who was terminated for having a discussion about compensation. Hobson Bearing International Inc. and Tera Lopez.
The NLRB held that BHC Northwest Psychiatric Hospital, operating as Brooke Glen Behavioral Hospital, did not violate federal labor laws by refusing to bargain with the Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP) at meetings where Teamsters-represented employees were present. The Board reasoned that PASNAP was engaging in tangential inter-union politics by inviting Teamsters-represented hospital technicians, which PASNAP wished to represent, to the meetings. The Board also held that the hospital’s termination of a PASNAP-represented employee did not violate the NLRA because the termination was motivated by the employee’s outbursts toward management and visitors, not because of any concerted activity. BHC Northwest Psychiatric Hospital and Brooke Glen Nurses Association.
A divided NLRB ruled that the Grand Sierra Resort & Casino violated the NLRA when it barred a former employee, who was the lead plaintiff in an FLSA collective action against the casino, from attending a public event on its premises a year and a half after her employment ended. The majority found that the casino’s exclusion of the former employee interfered with other employees’ right to engage in concerted activity, because the exclusion would “reasonably tend to chill” the employees’ participation in protected concerted activity. In dissent, NLRB Chairman Miscimarra asserted that, when it enacted the NLRA, Congress did not “intend to guarantee that every former employee would have a right of access to the private property of his or her employer whenever he or she joined other employees in a non-NLRA lawsuit against that former employer.” MEI-GSR Holdings, LLC.
The NLRB held that Western Cab Company violated the NLRA when it failed to notify or bargain with the USW over the company’s unilateral decision to reduce new hires’ waiting period for health insurance coverage. The Board rejected the company’s argument that bargaining was not required because the change was mandated by the Affordable Care Act (ACA), finding that Western Cab did not show that the ACA contained any obligation that would trump the company’s NLRA obligations. The Board also noted that when an employer is compelled to change its union-represented workers’ terms of employment, it is still obligated to provide the union notice and an opportunity to bargain over the aspects of the changes that were left to the company’s discretion. The Board found that Western Cab had some discretion over the length of the insurance coverage waiting period, but that it failed to notify the USW or bargain with it over that term. Western Cab Company and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union.
A split NLRB reversed an ALJ’s decision that ordered a union election at ADT LLC’s Texas offices, finding that a merger introducing new technicians into ADT’s workforce did not necessitate a union election. Because ADT could not show that the CWA claimed to represent the newly added technicians, or that the bargaining unit was unhappy with its representation, the Board held that ADT could not petition the NLRB for a new election. Chairman Miscimarra dissented, arguing that the existing CWA-represented unit was extinguished when ADT merged with Broadview Security, Inc., necessitating a new representation election. ADT LLC and Communication Workers of America Local 6215.
An NLRB ALJ ruled that New Orleans charter school operator Voices for International Business and Education Inc.’s complaint policy, which required workers to voice grievances to management rather than to colleagues, infringed on the employees’ right under the NLRA to engage in protected concerted activity. The ALJ also held that many of the school’s technology policies violated the NLRA, including those requiring employees to obtain prior approval to send mass emails, limiting technology use to school business, and requiring school consent before forwarding personal emails. Further, the ALJ found that policies prohibiting staff from using social networks during school hours and prohibiting employees from posting the school’s name, address, website, image, logo, or phone number on social media were illegal. The ALJ held that the school could, however, bar workers from accessing offensive content in emails and voicemails. Voices for International Business and Education Inc. d/b/a International High School of New Orleans and United Teachers of New Orleans Local 527.
An NLRB ALJ held that Minnesota electrical contractor J. Westrum Electric illegally became alter ego company JWE LLC when the company’s owner attempted to avoid contractual obligations to International Brotherhood of Electrical Workers (IBEW), Local 292. The owner, Jon Westrum, bound the company to a collective bargaining agreement between the National Electric Contractors Association and the IBEW. However, Mr. Westrum ditched J. Westrum Electric and established JWE LLC, without notifying the union. The ALJ held that Mr. Westrum created JWE LLC with an unlawful motive, ordering him to make whole bargaining unit employees who incurred losses because of his failure to comply with the collective bargaining agreement. Jon P. Westrum.
The National Mediation Board (NMB) rejected Norwegian Air Shuttle’s attempt to overturn a vote by its U.S.-based flight attendants to transfer their union representation from the Norwegian Cabin Crew Association to the Association of Flight Attendants (AFA). Norwegian argued that the vote, in which 59 percent of voting flight attendants favored joining the AFA, was tainted by “misleading, fraudulent, or abusive election practices.” The airline asserted that employees-in-training were not permitted to vote and that a questionable ballot distribution method resulted in 35 employees not receiving ballots. The NMB found “no evidence of fraud or gross abuse in the election process.” Norwegian Air Shuttle ASA.