The NLRB issued a one-paragraph order that it will review a regional director’s finding that Northwestern University’s grant-in-aid football scholarship players are “employees” under the NLRA, saying that the finding raised substantial issues that required another review. While the NLRB has not addressed this issue before, it has issued inconsistent findings on the similar issue of whether graduate teaching assistants are employees or students. Northwestern University v. College Athletes Players Association.


The U.S. Court of Appeals for the Fifth Circuit issued a one-paragraph order denying the NLRB’s request for anen banc rehearing of the Fifth Circuit’s ruling in D.R. Horton, holding that arbitration agreements barring employees from pursuing class or collective claims do not violate federal labor law. D.R. Horton Inc. v. NLRB. See Winston’s client briefing, Fifth Circuit Rejects NLRB Ruling, Finding Class Action Waivers Enforceable.


The U.S. Court of Appeals for the Sixth Circuit ruled that an employer cannot be compelled to arbitrate a union’s request that the employer pay funds earmarked for the union’s pension trust directly to employees where it would impermissibly amend the terms of the collective bargaining agreement. The district court had found that the employer, O-N Minerals, was not required to arbitrate a demand by the union that it start including pension contributions directly in employee wages after the employer had been expelled from the pension trust. The Sixth Circuit agreed and held in an unpublished opinion that the union’s demand would impermissibly require the arbitrator to alter the provisions of the collective bargaining agreement that detailed hourly wage schedules for employees and set the rates at which the employer was required to contribute to the union’s pension trust. O-N Minerals Co. v. Boilermakers Local Lodge D500.


The U.S. Court of Appeals for the Seventh Circuit ruled that Wisconsin’s law that provides that most public employee unions can bargain with state and local government employers over base wages only and eliminates payroll deductions for union dues (“Act 10”) does not violate the union’s First Amendment or 14th Amendment rights. Unions including Laborers Local 236 and American Federation of State, County and Municipal Employees Local 60 argued that Act 10 was unconstitutional because it allegedly disadvantaged union-represented employees as compared to individual government employees who “choose to go it alone.” The Seventh Circuit upheld the lower court decision, providing that “under Supreme Court precedent [in Smith v. Arkansas State Highway Employees Local 1315], such a law is constitutional.” Laborers Local 236 v. Walker.


The U.S. Court of Appeals for the Ninth Circuit ruled that a railroad employee was not preempted by the Railway Labor Act (RLA) from pursuing one of two state law negligence claims against BNSF Railway Co., where the claim was not contingent on an interpretation of a collective bargaining agreement. The employee in this case was first terminated and then given a long-term suspension after a head-on collision between his track inspection truck and a freight train. The employee made two claims under state law, asserting: (1) that BNSF’s mismanagement and the negligence of its employees caused the collision, and (2) that BNSF subsequently mismanaged the investigation and disciplinary proceedings against him. The circuit court held that the railroad employee could pursue a negligent mismanagement claim against the company despite the RLA’s broad preemption of union-represented employees’ state law claims. The court reasoned that there was no preemption because the employee’s claim involved “rights and obligations that exist independent” of the bargaining agreement. Wolfe v. BNSF Ry., 2014 BL 112301, 9th Cir., No. 12-35054.


An NLRB administrative law judge (ALJ) held that two AT&T telecommunications companies, in California and Nevada, committed unfair labor practices by restricting displays of union buttons the companies considered too obscene and offensive to customers. The ALJ determined that employees generally have the right to wear union buttons and related insignia and the companies’ interpretation of the buttons as vulgar was not reasonable. The ALJ held that the telecommunications companies failed to demonstrate special circumstances that would justify curtailing the employees’ exercise of their Section 7 rights. Pac. Bell Tel. Co.


The NLRB affirmed an ALJ decision finding that language in a Michigan hospital’s Values and Standards of Behavior Policy banning negativity and requiring employees to represent their employer “in the community in a positive and professional manner” was over broad and could be interpreted as prohibiting activity protected by Section 7 of the NLRA. Hills and Dales General Hospital.


The NLRB held that bus company First Transit Inc.’s employee handbook rules against stealing and loitering were lawful restrictions that did not interfere with employees’ labor rights. However, the Board found the company’s rules against showing discourtesy and an “inappropriate attitude” were too broad and in violation of the NLRA. Notably, the Board disagreed with an ALJ’s decision that a rule against “using Company property for activities not related to work anytime” would be interpreted by employees to mean they could not exercise their Section 7 rights. The Board further found that a clause in the employee handbook permitting “freedom of association” such that “during union organizing campaigns, management shall support the employee’s individual right to choose whether to vote for or against union representation without influence or interference from management” was too narrow to serve as a “savings clause” and faulted the company for not having it prominently displayed in the handbook. First Transit, Inc.


The NLRB upheld an ALJ finding that a California Hospital, Fallbrook Hospital Corp., negotiated in bad faith by using tactics such as delays, false statements, and refusals to furnish relevant information to the California Nurses Association/National Nurses Organizing Committee (CNA/NNOC). Two of the three board members held that these tactics warranted an order that the hospital pay the union’s bargaining expenses. One member dissented, finding that the hospital’s conduct did not justify such an extraordinary measure. Fallbrook Hosp. Corp.


The Society of Professional Engineering Employees in Aerospace (SPEEA) announced an arbitrator’s award of nearly $47 million in back wages and benefits for former Boeing Co. engineers based on violations dating back to 1999 and findings that they were improperly excluded from representation. The decision also mandates the company pay the union for the lost dues and fees resulting from the exclusion, plus 10 percent interest per annum. The arbitrator’s award also includes pension contributions for former employees, 401(k) matching contributions, medical coverage for early retirees, and payments toward Medicare supplemental insurance coverage for retirees.


An NLRB ALJ found that the International Longshore and Warehouse Union illegally picketed at a neutral barge line during its labor dispute with two grain companies, violating an injunction issued previously by the NLRB. An Oregon district court had already issued a preliminary injunction banning the union from picketing the barge, based on evidence the conduct was staged for the unlawful purpose of forcing the barge operator to cease business relations with the grain companies. A federal court held that the union was in contempt of court for violating this previous injunction. Meanwhile, the NLRB filed an additional petition to hold the union in further contempt of court for alleged picketing by the union in mid-April that had already been enjoined. The union has filed an opposition to this NLRB petition. Tidewater Barge Lines, Inc.


An NLRB ALJ found that a New York restaurant illegally fired one of its waiters for filing a lawsuit against the restaurant alleging violations of minimum wage and overtime laws under the Fair Labor Standards Act (FLSA). Despite the fact that the employee was the only named plaintiff on the complaint and acted without the authorization or consent of other employees, the ALJ found that the employee’s discharge was illegal under the NLRA because the plaintiff was pursuing the lawsuit as a collective action under the FLSA. 200 E. 81st Rest. Corp.


An NLRB regional director issued an unfair labor practice complaint against the United Food and Commercial Workers (UFCW) for the coercive and intimidating conduct of some of its members during a 2012 protest on Black Friday outside a Wal-Mart stores in Dearborn, Mich. According to the Complaint, about 50-80 individuals entered the electronics department of the store, blocking its entrances and exits. Some protestors, including one man, even went into the women’s restroom to interrogate an employee on her wages, hours and working conditions. The complaint alleges that the demonstrators’ conduct was “severe and egregious” and seeks a Board Order requiring the UFCW to cease and desist from engaging in these types of demonstrations. A hearing is scheduled before an NLRB ALJ on June 12th. United Food and Commercial Workers (Wal-Mart Stores Inc.


An NLRB ALJ held that a Kroger Co. communications policy that required workers to add disclaimers to any online postings about their employment with a statement that Kroger did not share their views violated the NLRA. The ALJ found that any legitimate interest Kroger had in avoiding confusion about whether it supported particular comments did not require such a sweeping rule that was “manifestly broader” than any such interest.Kroger Co. of Mich.


The NLRB held that United Workers of America Local 621 members who had voted to withdraw their union’s ability to require union membership as a condition of employment could not revoke union dues checkoff authorizations until election results were certified. The Board held that the union was authorized to continue to enforce dues obligations until an NLRB regional director issued a deauthorization election certification. The election occurred after the union representing janitors, porters, doormen, and other employees at a residential condominium continued to remit dues from the employees’ paychecks after the workers announced their resignations from the union and revoked their dues checkoff authorizations. The Board also reversed the ALJ’s unfair labor practice finding that the union’s conduct violated Section 8(b)(1)(A) of the NLRA and dismissed the unfair labor practice complaint against the union. United Workers of Am. Local 621 (Gretsch Condo.).


The NLRB Region 19’s Regional Director issued an opinion finding that adjunct professors at Seattle University, a Jesuit institution, could hold a hearing to determine whether they want to be represented by the SEIU. Regional Director Ronald Hooks found that despite the university’s ties to the Catholic Church, it was not a First Amendment right violation for the NLRB to conduct a certification election. Seattle University and Service Employees International Union Local 925.