• The NLRB issued its first decision regarding social media policies, striking down Costco Wholesale’s policy prohibiting employees from posting statements that damage the reputation of the company or any person. The National Labor Relations Act (“NLRB”) found that the policy could apply to activities protected under Section 7 of the NLRA and that employees would reasonably believe that the policy prohibited protected activities. The NLRB also noted that there was no language associated with the policy that limited its application to non-protected activities. Costco Wholesale Corp. [See our briefing on Costco here.]
  • An NLRB Adminstrative Law Judge (“ALJ”) held that EchoStar Corp.’s social media policy, prohibiting employees from posting disparaging comments about the employer, violated the NLRA by chilling employees’ right to engage in concerted action. The judge found that the policy was not made lawful by reading it within the context of the larger handbook, nor with the addition of a clause stating that the policy should be interpreted as lawful if a conflict with a law arose. Echostar, Inc.
  • A U.S. bankruptcy judge ruled that American Airlines, Inc. and its parent company AMR Corp. may reject collective bargaining agreements with its pilots, flight attendants, and transportation workers. After filing for bankruptcy last year, American asked the bankruptcy court for permission to abrogate its collective bargaining agreements with the Allied Pilots Association, Association of Professional Flight Attendants, and Transport Workers Union of America. The judge held that American may impose its proposed terms and work rules on pilots while it negotiates a new collective bargaining agreement with the union, and may enter into new agreements with the flight attendants and transport workers, providing for an approximate $195 million in reduced costs in the flight attendants contract and $171 million in cut costs in the transport workers contract. In re AMR Corp. et al.
  • The Michigan Supreme Court affirmed an appeals court finding that voters should decide whether a constitutional amendment guaranteeing workers the right to organize and collectively bargain should be added to the state constitution. The amendment would also prohibit the state legislature from limiting the collective bargaining rights of employees. Opponents of the initiative argued that the proposed amendment would radically change the constitution and that the initiative did not include enough information for voters to make an educated decision. The court found that the amendment would not change any existing constitutional provisions because the legislature would retain power, although that power would be curtailed. Protect Our Jobs v. Board of State Canvassers.
  • The U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s injunction against a Honolulu hotel for alleged unfair labor practices, the latest ruling in a case that has been pending for years. In 2005, the International Longshore and Warehouse Union Local 142 was certified as the bargaining representative for the hotel’s employees after the NLRB found that the hotel had engaged in objectionable conduct in two separate proceedings. Multiple unfair labor practices complaints against the hotel were subsequently filed and the NLRB issued a consolidated complaint in 2008. A district court granted a preliminary injunction in 2010, ordering the hotel to stop all alleged illegal conduct and recognize and bargain with the union. The injunction was later upheld by the Ninth Circuit in July 2011. Separately, the NLRB affirmed an administrative law judge’s decision finding that the hotel had violated the NLRA, and ordered that the hotel recognize the union and bargain for an initial contract, rescind the unilateral changes, and offer reinstatement. After these two decisions, the hotel allegedly engaged in more unfair labor practices, and a new complaint was issued by the NLRB general counsel. The second complaint included allegations that the hotel terminated an active union supporter for violating policies, even though the hotel had no written or established policy regarding the issue, and that the hotel made unilateral changes to an access policy and refused to provide the union with requested information. In upholding the injunction, the Ninth Circuit found that the NLRB regional director had shown he was likely to succeed in showing that the hotel engaged in unfair labor practices and that the union and employees could suffer irreparable harm if the injunction had not been granted. Frankl v. HTH Corp.
  • The District Court for the District of Arizona dismissed a lawsuit brought by the NLRB alleging that federal labor law preempted an amendment to the state constitution that guaranteed employees the right to vote by secret ballot for union representation. The amendment was approved by Arizona voters in 2010 and was similar to other amendments approved in the same year in South Carolina, South Dakota, and Utah. NLRB Acting General Counsel Lafe Solomon stated that the NLRA preempted the amendments, because the NLRA provides two ways to choose union representatives — through secret ballot elections or voluntary recognition. The district court found that the state courts had not interpreted the amendment yet and the NLRB’s argument was speculative until the amendment was applied. NLRB v. Arizona.
  • The NLRB certified the United Mine Workers of America union was certified as the bargaining agent for miners at Peabody Energy’s Willow Lake Mine in Illinois. The 440 employees had voted 219-206 for union representation in 2011, but the employer filed objections to the election, alleging that the union engaged in intimidation, threats, coercion, and fraudulent conduct. The union filed unfair labor practice charges, alleging that the company had made threatening statements and fired an active union supporter. An ALJ found that the employer’s objections were without merit, but that the employer violated the NLRA by terminating the union supporter one day after it filed its objections to the election. Additionally, the employer violated the NLRA when supervisors told employees that the mine would be closed if the employees voted for the union. The District Court for the Southern District of Illinois granted a preliminary injunction preventing the employer from threatening union supporters and ordering the fired employee reinstated. In certifying the union, the NLRB denied the union’s exception to the ALJ’s denial of a bargaining order, finding that the preliminary injunction and the certification of the union were adequate remedies. Big Ridge, Inc.
  • A Los Angeles Superior Court denied the Asian Pacific American Labor Alliance and the UFCW Local 770’s bid to temporarily stop work on a Wal-Mart store in the Chinatown area of Los Angeles. The court noted that a trial on the issues is set to begin in November 2012, but refused to grant a stay or temporary restraining order prohibiting construction until the trial. Wal-Mart obtained a permit for the store one day before the city council voted to restrict major retail chains from opening large stores within the Chinatown area, and construction has been proceeding on the project since June. Asian Pacific American Labor Alliance et al v. City of Los Angeles and Wal-Mart Stores, Inc.
  • A Wisconsin County Circuit Court judge struck down as unconstitutional much of Wisconsin Act 10, which restricted public employees’ collective bargaining rights. The judge found that the law infringed on the employees’ rights of free speech, freedom of association, and equal protection based solely on their participation in a union. The judge also found that the law violated the “Home Rule Amendment” to the state constitution by prohibiting the city of Milwaukee from paying employee contributions to the city’s employee retirement system. Madison Teachers Inc. v. Walker.
  • The Fifth Circuit held that employees do not waive their right to bring discrimination suits under federal and state legislation unless their collective bargaining agreement contains a “clear and unmistakable waiver.” The court found that an employee’s collective bargaining agreement did not waive her right to sue in court because the agreement did not specifically identify the statutes it purported to cover, although it did include a clause mandating arbitration of disputes. The court found that union employees have contract claims in addition to statutory claims for discriminatory conduct and that either the collective bargaining agreement or the arbitration provision must specifically refer to statutory claims in order for those claims to be waived. Ibarra v. United Parcel Service.
  • The Eleventh Circuit held that the NLRB does not have the authority to modify the orders of a federal court of appeals. In a long-running dispute, the NLRB had ordered a construction company to reinstate workers who struck and to bargain with the workers’ union. The Eleventh Circuit entered an injunction enforcing the Board’s order. An ALJ later recommended that the construction company be required to bargain with the union for 16 hours a week, and the NLRB adopted the recommendation. The company refused, and the NLRB petitioned the Eleventh Circuit again to enforce its order. However, the Eleventh Circuit found that the NLRB did not have the authority to modify the appellate court’s initial order, which did not include a time requirement for bargaining. NLRB v. Gimrock Construction, Inc.
  • The NLRB found that Fresenius USA Manufacturing, Inc., which makes dialysis products, violated the NLRA when it suspended and then terminated an employee for writing pro-union statements that included vulgar and offensive terms. The statements were written on a union newsletter left in a break room before a decertification vote. The employee denied writing the statements, but later admitted to writing them in a phone call that he believed was with his union representative but was actually with a company vice president. The NLRB’s decision reversed an ALJ’s finding that the statements were so offensive that they caused the employee to lose the protection of the NLRA. The NLRB held that the employer should have known that the statements were not intended to harass other employees but were protected because they pertained to the upcoming decertification vote. The NLRB ordered the employer to reinstate the employee and cease and desist from further union discrimination. Fresenius USA Manufacturing Inc. and International Brotherhood of Teamsters, Local 445.
  • The Seventh Circuit held that the Carpenters and Joiners of America and the Chicago Regional Council of Carpenters did not violate the Labor-Management Relations Act by picketing to protest the use of non-union labor on a construction site. The judge affirmed the trial court and found that the picketing would not violate the law or constitute tortious conduct unless the union’s objective was to threaten or coerce a secondary employer, one doing business with the picketed employer. The judge found that picketing was directed against the primary employer, the general contractor at the site, and there was no evidence that the union’s activities were directed against secondary employer Carpet Service International Inc., which used non-union labor. Carpet Serv. Int’l Inc v. Chicago Reg’l Council of Carpenters.