The U.S. Court of Appeals for the First Circuit overruled the NLRB and held that Southcoast Hospitals Group Inc., a Massachusetts health care consortium, consisting of three hospitals and other health facilities, did not violate the rights of union members at one institution by giving nonunion workers a hiring preference at other facilities. A collective bargaining agreement at one facility provided union-represented employees a preference for hiring and transfer into open bargaining unit positions. Other nonunion facilities allowed current employees a hiring preference over external candidates. The First Circuit said that there was no evidence the policy was adopted due to anti-union bias. The court also said that the NLRB could not show the preference at nonunion institutions was discriminatory just because it covered more jobs than the policy favoring union members at the unionized hospital. The court concluded the company’s “effort to treat its union and nonunion workers more even-handedly” was not unlawful. Southcoast Hosps. Grp., Inc. v. NLRB.
The U.S. District Court for the Northern District of Texas partially granted a preliminary injunction finding that Dish Network Co. must restore a 50 percent pay cut to unionized employees at two Texas facilities while NLRB determines whether the company made illegal unilateral changes to wages and health insurance. The court concluded that the NLRB demonstrated that both the unit employees and their union, the CWA, suffered “identifiable and substantial harm” as a result of Dish’s decision and that the company should maintain the status quo that existed prior to the wage cut while the NLRB considers whether the changes violated federal labor law. The court determined that the NLRB had reasonable cause to believe the parties were not at an impasse when Dish implemented its last bargaining proposal and that the company decision to unilaterally decrease employees’ wages and change their health insurance was unlawful. While the district court ordered Dish to restore the wages employees at the two facilities, he rejected the NLRB’s request for an order requiring the company to undo health benefits changes reinstate workers and bargain in good faith with the union. Kinard et al. v. Dish Network Corp.
The U.S. District Court for the Northern District of Ohio ordered that Flight Options LLC, a private jet carrier, must negotiate a contract with the IBT, representing about 600 pilots, after holding that the carrier had failed to bargain in good faith. The court ruled that the carrier violated a preliminary injunction order by rescinding a voluntary separation program with pilots without first negotiating with the union in good faith. Although the parties reached agreement regarding the program, the carrier failed to execute it. The court additionally ordered the parties to finalize their agreement, but refrained from ordering additional injunctive relief. Flight Options, LLP v. Teamsters Local 1108.
The U.S. District Court for the Northern District of Illinois ruled that the town of Lincolnshire cannot enforce a union-weakening “right-to-work” ordinance because it is preempted by federal labor law. Four local unions sued Lincolnshire after it adopted the right-to-work ordinance in December 2015, alleging that the law, which prevented the automatic collection of union dues and mandatory union membership, was preempted by the NLRA and the Labor-Management Relations Act. The court determined that federal labor laws did not give municipalities the power to regulate labor relations, writing that “it is highly unlikely that Congress intended to subject this national policy to the patchwork scheme that would result from city-by-city or county-by-county regulation of such agreements.” International Union of Operating Engineers, Local 399, AFL-CIO et al. v. Village of Lincolnshire, Illinois et al.
The NLRB unanimously affirmed an ALJ’s ruling that a T-Mobile USA Inc. call center in Albuquerque violated the NLRA when a senior human resources worker told an employee that he could not discuss the union with his co-workers while at work. Despite calling this “ban” an illegal “rule,” the ALJ did not direct the call center to rescind the rule. A Board majority ruled that the ALJ’s order should be modified to direct that the rule be rescinded. However, Board Member Philip A. Miscimarra disagreed with majority’s decision to modify the order, finding the ban was not a rule but a statement to a single employee. T-Mobile USA Inc. & Communications Workers of America.
The NLRB affirmed an ALJ ruling that a Burger King Corp. franchisee in Missouri unlawfully retaliated against a group of workers by disciplining them for failing to appear for their scheduled shifts during a one-day nationwide strike that sought to increase the minimum wage for fast food workers to $15 per hour. The NLRB ordered the Burger King franchisee to cease and desist from disciplining its employees for engaging in a strike activity and for supporting the Workers Organizing Committee-Kansas City or any other union. The NLRB also ordered the franchisee to remove from its file any reference to the unlawful discipline issued to the workers who participated in the strike and to notify those workers in writing that the unlawful discipline would not be used against them in the future. EYM King of Missouri, L.L.C.
The NLRB unanimously held that Local 18 of the International Union of Operating Engineers (IUOE) committed an unfair labor practice by forcing employers operating under the Ohio-based Construction Employer’s Association (CEA) building agreement to use the union’s operators to perform forklift and skid steer work, despite the Board’s previous decisions denying the union the rights to that work. The dispute arose after the NLRB found, in multiple prior orders, that another union had the exclusive right to perform the work. Instead of adhering to these orders, the Operating Engineers continued to use grievances to challenge the contractors’ allocation of the work to the other union. International Union of Operating Engineers Local 18 (Nerone & Sons Inc.).
In a one-page ruling, the NLRB refused a request by Chi LakeWood Health Clinic, a rural Minnesota hospital, to review a Regional Director’s determination that its patient care coordinators (PCC) are not supervisors under the NLRA and can seek union representation. Board Member Philip Miscimarra issued a scathing dissent, arguing that the Board’s supervisor determinations have become “increasingly abstract.” Miscimarra argued that the NLRA “does not limit supervisory authority to dictators, and even if there is only one other nurse on shift, PCCs still have the authority to assign a patient to the other nurse or to themselves.” Miscimarra further took issue with the Regional Director’s finding that independent judgment is not used by PCCs when directing nurses. LakeWood Health Center d/b/a Chi LakeWood Health and Minnesota Nurses Association.
An NLRB ALJ ruled that Dollar Thrifty Automotive Group Inc. maintained a number of illegal workplace rules, including prohibitions on internet use and behavior, finding the rules were vaguely drafted and potentially chilled protected activity. The judge found nearly 20 workplace rules to be vague and overbroad, including an internet rule that prohibits profane and defamatory communications on company computers, a rule encouraging pay confidentiality, a rule barring the disclosure of information deemed confidential or proprietary, a requirement that the company approve any media requests, and a rule that prohibits employees from “disrupt[ing] harmony, intimidate[ing] fellow employees, or interfer[ing] with normal and efficient operations.” The ALJ ordered the company to rescind the rules, advise employees that the rules are rescinded, and provide new rules that are lawfully worded. Dollar Thrify Automotive Group and Communication Workers of America Local No. 7777.
An NLRB ALJ ruled that a trade group that represents sign language interpreters violated federal labor law when it implemented and enforced antitrust and civility policies barring its members from discussing their employment conditions or unionization efforts on the group’s Facebook page. The ALJ found the trade group, the nonprofit Registry of Interpreters for the Deaf (RID), also illegally deleted certain posts on its video interpreter page, in which individual members expressed sympathy toward a unionization drive. The judge ordered RID to rescind its antitrust and civility policies and notify its members nationwide that they are free to post messages on the group’s Facebook page about their terms and conditions of employment without fear that those postings will be removed. Registry of Interpreters for the Deaf Inc. and Pacific Media Workers Guild, Local 39521.
In a split decision, the NLRB held that adjunct professors at the University of Southern California’s art school can vote on whether to form a union, finding that their role in setting school policy via faculty committees does not make them managers. The majority said that the Regional Director who wrote the order rightly found that the non-tenure track professors were not managerial employees and so are not exempt from organizing under the Board’s 2014 Pacific Lutheran University ruling. University of Southern California and Service Employees International Union, Local 721.
An NLRB ALJ found that Pfizer’s policy prohibiting employees from filing collective and class complaints violated the NLRA, with the same “venom” as anti-unionization contracts of the 1920s and 1930s. At issue was a policy requiring Pfizer employees to sign waivers of their right to file joint, collective, or class-action complaints or grievances. Pfizer argued that employees still retained their right to file joint grievances because, under arbitration rules, their challenges could be consolidated with others that raised common issues. However, the ALJ determined this was not a replacement for the employees’ Section 7 right to file a joint grievance, and recommended that the NLRB order Pfizer to rescind the challenged provisions for its employees nationwide, except those covered by collective bargaining agreements. Pfizer Inc.
An NLRB Regional Director issued a decision allowing the unionization of graduate students in nine departments at Yale University. The RD explained that Yale failed to demonstrate that its graduate students were “sufficiently distinct” from the student assistants who were classified as statutory employees by the NLRB in Columbia University. He also noted that the nine petitioned-for units were appropriate in light of the Board’s analysis in Specialty Healthcare. According to the decision, each of the nine departments will hold separate elections at a later date. Yale Univ.
The Associate to the General Counsel in the Division of Operations-Management, Beth Tursell, directed all regional offices to informally settle meritorious cases, which allege that the employer is either maintaining and/or enforcing arbitration agreements that bar workers from pursuing class-action claims, as prohibited by the NLRB’s Murphy Oil decision. Tursell further instructed the Board’s regional offices to condition the settlements on the agency prevailing on the class waiver issue before the Supreme Court. According to Tursell, to the extent that any charge contains both an allegation that the employer has been maintaining and/or enforcing an agreement that violates the Murphy Oil decision and an allegation unrelated to the agreement at issue, regional offices should propose that the parties execute an informal settlement agreement with regards to the Murphy Oil allegation(s), which would also be conditioned on the agency prevailing before the Supreme Court. Should the parties be unwilling to settle the unrelated allegations, Tursell’s memo directs the regional offices to proceed with those allegations that have merit. Tursell concluded the memo by instructing regional offices to hold cases in abeyance that involve opt-in/opt out clauses in mandatory arbitrations agreements or where employers argue that the agreements at issue are distinguishable from those in the Murphy Oil case. The memo was released two weeks after the Supreme Court’s grant of certiorari in NLRB v. Murphy Oil (5th Cir.), Epic Systems Corp. v. Lewis (7th Cir.), and Ernst & Young, et al. v. Morris (9th Cir.). The Supreme Court’s decision will ultimately resolve the issue of whether arbitration agreements that contain class-actions waivers violate the NLRA.
An NLRB Regional Director has approved a settlement between Huntington Hospital, a not-for-profit hospital in Pasadena, Calif., and the California Nurses Association (CNA) concerning CNA’s allegations that the hospital’s supervisors had engaged in unlawful labor practices by interrogating nurses about their union activity. The agreement requires the hospital to post notices throughout its facility detailing the registered nurses’ federal labor rights and to allow registered nurses to organize a union should they choose to do so.