The NLRB held that as a successor to a unionized entity, Lily Transportation Corp. was required to bargain with the union for a reasonable period of time before employees could raise a question about union representation. In 2013, Lily Transportation Corp. succeeded another entity at a Toyota Motors parts distribution center. Lily Transportation employed 20 drivers, 13 of whom were union-represented employees of the prior employer. The union demanded recognition and filed an unfair labor practice charge when the company refused. The company contended that it received signed statements from a majority of the formerly unionized workers stating that they no longer wished to be represented by the union. However, the NLRB agreed that the successor company violated the NLRA by failing to recognize and bargain with the union. Lily Transp. Corp.    

The NLRB held that video testimony does not violate an employer’s right to due process during an unfair labor practices hearing. The NLRB has held that the rule of procedures in unfair labor practices cases that “[w]itnesses shall be examined orally under oath, except that for good cause shown after the issuance of a complaint, testimony may be taken by deposition,” precludes use of telephonic testimony. The NLRB refused to extend that rule to also prohibit video testimony, specifically where the video testimony is regulated (e.g., with the use of video technicians). EF Int’l Language Schools, Inc.    

The National Labor Relations Board’s general counsel concluded that Sherwin Alumina Co. LLC lawfully locked out 450 United Steelworkers-represented employees at Sherwin’s Texas plant, denying the United Steelworker’s appeal of a Regional Director’s refusal to issue a complaint over the lockout, which began in October 2014. Sherwin Alumina Co.    

The U.S. Court of Appeals for the Eleventh Circuit ruled that an arbitrator exceeded his power by issuing a substitute award, because although he had the ability to decide the issues submitted and those argued by the parties, he did not have the ability to revisit the merits of the award once it had been issued. The arbitrator initially held that pursuant to a collective bargaining agreement, laid-off employees had the ability to “bump” current employees with less seniority if the laid-off employee previously held the same position. The arbitrator then subsequently issued a substitute award. Electrical Workers IBEW Local Union 824 v. Verizon Fla., LLC.    

A federal court in Arizona ruled that the NLRB did not improperly process union election petitions based on a “micro-unit” organizing strategy despite the fact that employees rejected full union representation in 2008. In 2008, 760 employees at Yuma Proving Ground, owned by TRAX International Corp., a defense contractor, voted against IAM representation. Since July 31, 2015, IAM Local 2282 has filed six petitions with the NLRB seeking union elections for different groups of employees at Yuma Proving Ground. The federal court noted that absent a showing that the NLRB acted in excess of its statutory powers (it found no such showing was made), it had no jurisdiction over the issue. Trax Int’l Corp. v. NLRB.    

The Eleventh Circuit held that state lawmakers’ records relating to a law are protected by the legislative privilege. The Alabama Education Association sought to compel records of lawmakers showing that a law barring state and local government employees from paying union dues through payroll deduction was passed in retaliation for the union’s past support of educational policies the lawmakers opposed. The circuit court reasoned that because information relating to the motivation behind a law is exactly what the legislative privilege is meant to protect, the union was not entitled to the records requested. In re Hubbard.    

A federal trial court in Pennsylvania ruled that, under ERISA, claims for delinquent contributions may only be brought against signatories to a collective bargaining agreement. The plaintiff sought contributions from three entities, only one of which signed the collective bargaining agreement. The plaintiff claimed the other two entities were joint employers. The court, in dismissing the plaintiff’s claims against the two non-signatory entities, noted that the specific provision under ERISA at issue in this case targeted “an employer who is obligated to make contributions under a multiemployer plan or collective bargaining agreement,” not simply any employer.Carpenters Combined Funds Inc. v. Kelly Sys., Inc.    

An NLRB regional director held that Danbury Hospital of the Western Connecticut Health Network’s search of one database for employee phone numbers and email addresses did not comply with the NLRB’s requirement that employers make a good-faith effort to produce available personal email addresses and available home and cell phone numbers of all eligible voters before a union representation election. Danbury Hospital of the Western Connecticut Health Network did not search other databases it used to store employee contact information or other resources it had, like phone lists. The regional director ordered that a second union representation election take place. Danbury Hosp.    

The U.S. Court of Appeals for the Second Circuit ruled that an employer’s firing of two employees for “liking” and commenting on a Facebook post that was critical of the employer violated the NLRA because the “liking” and commenting constituted protected, concerted activity. The Facebook post disclosed an ongoing labor dispute over income tax withholdings. The court noted that the “liking” and commenting was not intended to defame the employer, but rather that it was simply an employee discussion of labor issues. Three D LLC v. NLRB.    

The NLRB granted the UAW’s request that it reconsider a 2004 decision to deny collective bargaining rights to research and teaching assistants and other graduate students at the New School in New York. The New School.     The NLRB held that it would process union petitions that do not disclose whether the union issued a demand for recognition. The International Union of Operating Engineers Local 501 left block 7 (where unions are instructed to include a description of their bargaining demand and an employer’s response) on the NLRB’s standard form petition (Form NLRB-502(RC)) blank, so MGM Grand Hotel LLC moved to dismiss the union election that the union had previously won. In upholding the election, the NLRB noted that there is a longstanding practice of not dismissing a petition where a question concerning representation exists. MGM Grand Hotel, LLC.    

The NLRB held that Marina Del Rey Hospital’s policy barring off-duty employees from entering the interior of the hospital “except to visit a patient, receive medical treatment, or conduct hospital-related business” was lawful on its face. In January 2013, an ALJ (acting on unfair labor practice charges filed by the California Nurses Association and the SEIU) held that the policy was unlawful on its face based on precedent that found a similar provision violated the NLRA because it interfered with employees’ right to engage in union or protected concerted activity. The NLRB, noting that the precedent relied on by the ALJ had been vacated, reasoned that the policy was lawful on its face because it applied to off-duty access for all purposes, not just union activity. The ALJ and NLRB agreed, however, that Marina Del Rey Hospital applied its facially lawful policy in an unlawful manner when it allowed off-duty employees to enter the hospital for other reasons not noted in the policy, such as for social events and to apply for job transfers. Marina Del Rey Hosp.    

The U.S. Court of Appeals for the Fifth Circuit reversed a decision by the NLRB, which found that an arbitration agreement that barred workers from pursuing class actions in all forums was unlawful. The Fifth Circuit find that Murphy Oil did not commit an unfair labor practice by using the arbitration agreement, noting that that the arbitration agreement at issue specifically stated that the arbitration agreement did not prohibit employees from filing charges with the NLRB. Murphy Oil USA Inc. v. NLRB.    

An employer sought NLRB review after a Regional Director decided to exclude ballots in a UFCW-affiliated union election finding that, although they were mailed in before the deadline, they were not received until after and thus ineligible to be counted. The NLRB declined to review the regional director’s decision noting that the employer Classic Valet Parking Inc. did not present any substantial issues warranting review and that adhering to the established practice of not counting ballots that come in after a tally (even though they may have been postmarked before) is the best approach. Classic Valet Parking Inc. and Local 1102, Retail, Wholesale & Department Store Union, United Food and Commercial Workers.    

An NLRB Regional Director dismissed a petition for a representation election by graduate student workers at Columbia University in New York. The regional director reasoned that she was bound by the decision in Brown University that graduate students could not be considered employees under the NLRA because their primary relationship with the university was an academic one. The dismissal sets up a possible appeal to the NLRB.Columbia Univ.    

A federal judge in New York partially granted enforcement of an administrative subpoena by the NLRB for records, including emails regarding union representation sent from executives and supervisors at McDonald’s to franchisees. Although at its core the underlying case is about employee firings and suspensions at 29 McDonald’s locations for involvement in protests, the outcome of the case could have a more far-reaching impact on McDonald’s and its peer companies. Specifically, at issue is whether McDonald’s and its peer companies could be found to be joint employers with their franchisees. NLRB v. McDonald’s USA LLC.    

The NLRB affirmed an order blocking Teamsters Local 210 from serving as the exclusive collective bargaining representatives of custodians at New York’s John F. Kennedy International Airport Terminal 2. The dispute arose after ISS Facility Services Inc., which contracts with Delta to clean at the airport, granted Local 210 exclusive representation at Delta’s Terminals 2 and 4 and then entered into a collective bargaining agreement just a few months later. The Terminal 2 and 4 workers previously had different bargaining representatives. After the United Service Workers Union disclaimed its rights to the Terminal 2 facility, the Board found that the Teamsters illegally rolled Terminal 2 employees in the fold by so-called accretion, finding that neither ISS nor the union demonstrated that the Terminal 2 employees shared an overwhelming community of interest with their Terminal 4 counterparts. The Board ordered ISS to cease and desist from recognition of the Teamsters as the exclusive bargaining unit of custodians at Terminal 2. ISS Facility Services Inc. and Gwenette Adams and Local 210, International Brotherhood of Teamsters and Local 210, International Brotherhood of Teamsters and Gwenette Adams.