A divided NLRB upheld election results certifying a Teamsters local as the bargaining representative for a unit of Florida bus drivers. The Board found that the Teamsters’ use of employee photographs with captions misrepresenting their voting intention was permissible as voters could recognize campaign propaganda for what it was. The Board affirmed that it would not set aside an election unless the use of forged documents left voters unable to recognize rhetoric as campaign propaganda. The Board’s lone dissenter called for changing the standard to make it objectionable for a union to disclose how employees intend to vote. Durham Sch. Servs.

The NLRB upheld an administrative law judge’s (ALJ) decision that an employee’s referral to an employer as a “Ponzi scheme” in a local newspaper was not considered an “extraordinary event.” Therefore, the comments did not relieve the employer of its duty to offer reinstatement after the illegal discharge of the employee for engaging in concerted activity. The NLRB admonished that reinstatement will be deemed inappropriate only in extreme circumstances, citing cases involving an employee issuing illegal threats or striking a supervisor with a car. The Fund for the Public Interest.

An NLRB ALJ held that Boeing engaged in an unfair labor practice by taking pictures and videos of roughly 300 workers marching in support of union demands for a new contract. Although Boeing did not discipline any participants, the ALJ found that recording the march violated Section 8(a)(1) because it had a chilling effect on the employee’s exercise of National Labor Relations Act (NLRA or Act) rights and that Boeing lacked a reasonable objective basis to justify recording the non-disruptive march. In addition, the ALJ found that a Boeing policy prohibiting employees from taking pictures or videos at work violated the NLRA because it prevented employees from documenting NLRA protected activity. Boeing Co.

An NLRB ALJ ruled that a Hooters franchise unlawfully fired a waitress after she complained about an allegedly rigged bikini contest. After losing the mandatory bikini contest, the employee engaged in a profane argument with another employee and was subsequently fired. The ALJ found Hooters’ reason for terminating the employee – initially, Hooters claimed she was terminated for the profanity and then changed its reasoning to “negative social media posts” – to be pretext while the employer looked for an opportunity to fire her for complaining about the contest. In addition, the ALJ struck down nine handbook provisions, including a policy forbidding workers from discussing their tips, a policy broadly prohibiting insubordination, and non-disclosure language that the ALJ found to be so broad that employees could reasonably believe they were unable to discuss wage and salary information. Finally, the ALJ also applied the NLRB’s controversial D.R. Horton analysis in striking down a mandatory arbitration agreement that waived the right to bring class claims. Hoot Winc, LLC and Ontario Wings, LLC d/b/a/ Hooters of Ontario Mills. View our client briefing, NLRB Continues to Expand Authority Over Labor Disputes, for more details.

The NLRB upheld a contested vote by nursing assistants at ManorCare of Kingston PA LLC, in favor of the Laborers’ International Union of North America as their bargaining representative. The vote was challenged by Manor Care, which argued that comments made by two employees threatening bodily harm to those who voted against the union warranted a new election. The Board found that the remarks of the employees were intended as a joke and did not rise to the level of objectionable third party threats sufficient to set aside the election results. ManorCare of Kingston PA, LLC.

Salem Hospital Corp. of New Jersey lost an appeal before the NLRB, affirming an earlier determination that the hospital had violated the collective bargaining agreement with its employees by unilaterally altering the hospital dress code. The Board found that the hospital’s policy change had a major financial impact on its employees, and that implementing such changes without seeking employee input violated the collective bargaining agreement. Salem Hosp. Corp.

The NLRB held that a California nursing home violated federal labor law by restricting the off duty access of employees to the employer’s premises without supervisor permission. The SEIU, representing nursing home employees, challenged the policy of American Baptist Homes of the West, which operates the Piedmont Gardens Home. The Board held that the policy, which gave supervisors unlimited and standardless discretion to determine permissible access to the workplace for off duty employees, violated the NLRA. Piedmont Gardens.

The New York Court of Appeals held that a school’s concern for the safety of students outweighed the free speech rights of picketing teachers who blocked the school’s drop off zone while displaying protest signs from their parked cars. A 5-2 majority of the court found that the protest forced students to walk in the rain and between parked cars, creating a potential risk to student safety that outweighed the First Amendment value of the teacher’s protest. Santer v. Bd. of Ed. of E. Meadow.

The Michigan Supreme Court ruled that neither the NLRA nor the Labor Management Reporting and Disclosure Act (LMRDA) preempts Michigan Whistleblower Protection Act claims when criminal activity is alleged. Four former union employees claimed they were fired after filing a report with the United States Department of Labor, raising concerns about the misappropriation of union funds. The court majority held the LMRDA recognizes a strong state interest in protecting against criminal conduct, and a union employer’s discretion in employment matters is limited where allegations of criminal wrongdoing are involved. Further the court found that the NLRA will not preempt state law where the regulated activity is merely a peripheral concern of the NLRA, or where regulated conduct touches interests that are deeply rooted in local feeling and responsibility. Henry v. Laborers Local 1191.

The NLRB overturned an ALJ ruling in favor of a group of workers at a Brooklyn condo complex who argued that union representation termination letters should not be held invalid because they were submitted early. UAW Local 621 claimed it never received proper termination letters from the workers because the NLRB did not officially recognize the decertification vote until 10 days after the letters were sent to the union. As a result, the workers were required to pay a year’s worth of membership dues after termination. The NLRB ruling upheld payment of the dues, holding that premature revocations of dues check-off authorizations do not become valid upon certification of de-authorization election results. United Workers of Am.

The U.S. Court of Appeals for the Seventh Circuit declined to reconsider challenges to a Wisconsin law that restricted the ability of government workers to collectively bargain. In April, a three-judge panel for the Seventh Circuit found that Wisconsin’s Act 10, passed in 2011, did not proscribe union conduct but instead restricted government employers from creating collective bargaining agreements based on anything but workers’ base wages. The panel noted that the unions were not prohibited from forming, meeting, or advocating and did not violate the First and Fourteenth Amendments. Two unions, Laborers Local 236 and American Federation of State, County and Municipal Employees Local 60, petitioned for rehearing and a rehearing en banc, which the Seventh Circuit denied. Laborers Local 236 v. Scott Walker.

The NLRB, along with the U.S. Department of Labor and U.S. Department of Justice, argued in a statement to the U.S. District Court for the Eastern District of Tennessee that the UAW and Volkswagen AG did not violate the LMRA by agreeing to routine ground rules during the union’s organizing campaign at VW’s plant in Chattanooga, Tenn. After workers voted against the union in February 2014, anti-union workers filed suit against UAW and VW, arguing that VW violated the LMRA’s anti-bribery provisions by providing things of value to the union, including allowing the union to use VW property for organizing activities, remaining neutral during the campaign, and conducting employee meetings with the union during employees’ work hours. The federal agencies argued that the LMRA does not apply to an organizing ground rules agreement and argued that only government entities may seek injunctions for violation of the anti- bribery provisions. On May 23, the employees who brought the case withdrew the lawsuit. Burton v. Int’l Union United Automobile Aerospace & Agricultural Implement Workers of Am. UAW.

The UFCW Local 23 sued a Giant Eagle grocery store in Edinboro, Penn. after the store raised the wages of 25 high performing employees above their union rates. The union argued that the pay increases violated the parties’ collective bargaining agreement by upending their seniority-based pay scale. The union filed a grievance and an arbitrator ruled in the union’s favor and ordered the company to revoke the raises. The store appealed in federal district court, but the court refused to vacate the arbitrator’s decision. Giant Eagle Inc. v. United Food & Commercial Workers Union, Local 23.

The NLRB upheld an ALJ’s findings that a nursing home management company violated the NLRA when it banned workers from wearing union stickers and removed union fliers from six facilities. The presumption that bans on wearing union insignia in patient care areas is valid was not applicable because the prohibition was selectively enforced against the union sticker, which stated the company had been “busted” for violating the NLRA. HealthBridge Management LLC.

A used car dealership in Arizona was ordered to reinstate a salesman who was fired after he used profanity when bringing his concerns to the business owner. The NLRB found that the salesman did not engage in menacing, physically aggressive behavior or belligerent conduct, and therefore did not lose the protection of the NLRA. The salesman raised concerns about the company’s refusal to grant lunch and restroom breaks, its failure to pay hourly minimum wages, and its low commissions. The owner told him he did not need to work there, and the salesman pushed his chair aside, berated the owner, and said the owner would regret it if he fired the salesman. The ALJ found that the salesman’s termination did not violate the NLRA, because his aggressive actions and statements were not protected. The NLRB reversed, finding the employee’s conduct was not so severe as to lose protection under the Board’s traditional Atlantic Steel factors, including the place of the discussion, its subject matter, the nature of the outburst, and whether the outburst was provoked by perceived unfair labor practices. Plaza Auto Ctr.

The NLRB’s Division of Advice released a memorandum finding that a New York school teaching English as a second language was not required to negotiate with the union before issuing warning letters to several teachers. Because the warnings did not have an immediate effect on the teachers’ tenure, status or earnings, the warnings did not trigger a duty of preimposition bargaining required under NLRB precedent set in Alan Richey, Inc. The memorandum concluded that the unfair labor charge against the employer should be dismissed or withdrawn. Kaplan Int’l Ctrs.

The NLRB invited briefing regarding its joint-employer standard in a decision involving the Teamsters’ attempt to organize a recycling facility’s workers employed through a staffing subcontractor. Under the current standard, established in TLI, Inc., joint employer status is determined by looking at whether each entity meaningfully affects the terms and conditions of employment. NLRB Acting Regional Director George Velastegui determined that the facility did not retain sufficient authority to be considered a joint-employer and therefore was not obligated to bargain with the Teamsters. The Teamsters argued that the recycling facility controls the employees’ hours, wages, working conditions, and productivity standards, and therefore should be considered a joint-employer with the subcontractor. Parties and interested amici can file briefs before June 26, 2014 . Browning-Ferris Indus. of California, Inc.

The NLRB invited briefing on a recommendation made by the NLRB’s General Counsel that the Board’s Register Guard decision be overturned. Register Guard holds that employees do not have a statutory right to use employer email systems for personal use. Under this precedent, an ALJ ruled that employer Purple Communications did not violate the NLRA by maintaining a policy prohibiting employees from using its electronic equipment and systems for personal use. The General Counsel and CWA have urged the Board to overturn Register Guard and adopt a rule that employees have the right to use their employer’s email network for Section 7 activity if they can use it for work purposes, subject to the employer’s need to maintain production and discipline. Briefs may be filed by parties or interested amici on or before June 16, 2014 . Purple Communications, Inc.