The U.S. Court of Appeals for the District of Columbia Circuit rejected and remanded a National Labor Relations Board (NLRB or Board” decision holding that two groups of employees at a general contracting firm sufficiently shared a “community of interest” to include them in one bargaining unit. The Appeals Court admonished the Board for not considering evidence presented by the company, including the differences in locations, compensation structures, and type of work, which undermined a finding that the employees shared a community of interest. The court, therefore, held that the Board’s decision was not supported by substantial evidence and ordered the Board to consider this evidence. NLRB v. Tito Contractors Inc.
The U.S. Court of Appeals for the Seventh Circuit vacated a Board decision in which it found that Columbia College Chicago violated the National Labor Relations Act (NLRA or the Act) when it cut the number of credit hours for 10 courses, resulting in a pay decrease, without first bargaining with the part-time faculty’s union. Striking down the Board’s decision, the Seventh Circuit sided with the school, holding that the management rights clause in the parties’ collective bargaining agreement granted the school with authority to unilaterally modify any course without consulting the union. Columbia College Chicago v. NLRB.
The U.S. Court of Appeals for the Sixth Circuit upheld an injunction blocking enforcement of the check-off provision of Michigan Public Act 269 of 2015, which prohibits unions from using payroll deductions to collect donations to political action committees. Agreeing with a federal district judge, the court held that the law, which only applies to unions and not corporations, violates the contract clause rights of unions as it interferes with collective bargaining agreements permitting payroll deductions to union-sponsored PACs. The court, however, reversed the district judge’s finding that the provision restricted unions’ First Amendment rights, noting that both it and the Supreme Court have previously held that “elimination of a PAC check-off opportunity does not amount to a restriction on speech.” The court further explained that due to the widespread development of cheap and efficient means of transferring money, unions have other opportunities to “speak with one’s pocketbook.” Michigan AFL-CIO v. Schuette.
A U.S. district court judge for the Northern District of Texas held that the Occupational Safety and Health Administration (OSHA) contradicted its own rule in a 2013 letter that allowed union representatives to be present during inspections of non-union workplaces, paving the way for continued challenges to the policy articulated in the letter. The court explained that the rule does not permit union representatives on walk-arounds unless they are also employed by the employer. In response to the ruling, OSHA can either withdraw the letter or open the rule to public comment and eventually amend it. Nat’l Fed’n of Indep. Bus. v. Dougherty.
The NLRB ordered that Local 91 of Laborers’ International Union of North America pay back pay and reimburse one of its members for his costs associated with job hunting after the local removed him from its job referral list. The Board found that the local unlawfully suppressed the member’s speech and retaliated against him for publishing a critical post of the local’s business manager on Facebook, explaining that it is “elementary” that an employee has a protected right to engage in intra-union activities in opposition to union leadership. Laborers’ International Union of North America, Local Union No. 19.
A divided Board held that an International Brotherhood of Electrical Workers local unlawfully restricted union members’ rights to resign from the union and restrained their rights to revoke prior authorizations for union dues checkoffs by implementing a policy requiring members to resign their membership and revoke their checkoff authorizations in writing, in person, and with a show of identification. The Board found that the policy clearly intended to make it more difficult to tender their resignations and revocations, thus discouraging members from exercising their rights. Further, the Board ruled that the union lacked authority to unilaterally implement any such policy in the first place. Local 58, IBEW, AFL-CIO (Paramount Industries Inc.).
The NLRB ruled that Healthbridge Management LLC, a Connecticut network of nursing facilities, violated the Act when it attempted to circumvent its collective bargaining agreements by temporarily giving managerial and payroll responsibilities to a subcontractor and then requiring workers to reapply for their positions without their seniority rights after reassuming the managerial and payroll obligations from the subcontractor. The Board held that despite this brief “transition,” Healthbridge remained the employer of the workers and thus violated the parties’ labor contract, which bars subcontracting without codifying workers’ seniority rights. Healthbridge Management LLC et al. and New England Health Care Employees Union.
The Board found that aluminum manufacturer, Alcoa Inc. and window maker Traco were joint employers under the Act and together violated federal labor when Alcoa prevented union members from handbilling on Traco property. The Board stated that there was “substantial evidence showing common control over labor relations as well as interrelation of operations and common ownership” to warrant finding the two companies constituted a single employer. In particular, the Board noted that Traco, which was bought by Alcoa several years ago, received and followed Alcoa’s labor relations free advice with regard to the handbilling. Alcoa Inc. et al. v. NLRB.
Relying on Lutheran Heritage Village, which holds work rules are unlawful if employees “would reasonably construe” them to prohibit protected activities under Section 7 of the Act, the Board ruled that Verizon maintained several provisions in its employee handbook that infringed upon employees’ communication and solicitation rights. In a forceful dissent, acting chair Philip Miscimarra stated that the Lutheran Heritage standard should be overturned because it is both contrary to “common sense” and other Board precedent. Miscimarra argued that the Board instead should adopt a rule that balances employees Section 7 rights against an employer’s business justifications for the rule. Miscimarra also criticized Purple Communications, stating that the Board should revert to its holding in Register Guard, which permits employers to control the use of their property including email systems, as long as such control does not treat Section 7 protected uses differently than other uses. Cellco Partnership d/b/a Verizon Wireless Inc. et al.
The NLRB General Counsel issued a memorandum stating that it will now determine employer liability and appropriate remedies in cases involving an employer’s alleged failure to provide a newly certified or recognized union with notice and an opportunity to bargain before imposing serious discipline of employees. The General Counsel noted that waiting to litigate reinstatement and back pay issues, the Board’s former course, “unduly prolongs the compliance process,” particularly given that the same facts must be examined to determine liability and the proper remedy.
In an official memorandum, the NLRB Office of General Counsel stated that college football players, specifically those competing in NCAA Division 1, are employees and protected under the NLRA. Relying on the factual record in Northwestern, in which the Board declined to hear a case concerning players’ unionization efforts, and Columbia, in which the Board ruled in favor of graduate teaching associates as employees, the General Counsel determined that there are no bases for precluding players at private universities from being considered employees.
The NLRB updated language and revised procedural regulations regarding the filing and service of documents in light of the prevalence of modern technologies. Among other changes, the revisions authorize the Board to use fax or email for service and removes references to service by telegraph and clarifies that a party’s filing deadline remains fixed even where the opposing party submits a document early. The changes are effective March 6, 2017.
An NLRB ALJ ruled that a Brooklyn dump truck company violated the Act when it stopped providing assignments to workers after they voted to unionize and conditioned reinstatement on workers’ rejection of the union. The ALJ noted that although a company can lawfully shut down after a union vote, the closure must be permanent and cannot have been carried out to discourage unionism. In this instance, however, the company’s closure was only temporary and could be expected to chill workers’ union activity. Dawn Trucking Inc. and Mickoy Holness.
An NLRB ALJ dismissed a case brought by Local 720 of the International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada against Wynn Las Vegas over an alleged refusal to negotiate, ruling that the hotel had no duty to bargain with the union. Wynn had signed a contract with Labor Plus to employ stagehands at its Encore theater, but after the union filed a representation petition to represent the workers, Wynn terminated the contract and decided to use only Wynn stagehands. One month later, the stagehands voted for representation. Although the ALJ found Wynn was a legal successor to Labor Plus, the ALJ found there was no successorship majority because out of the 20 stagehands working at Encore at the time of the election, only ten were former Labor Plus employees. Accordingly, the ALJ concluded Wynn did not have an obligation to bargain with the union. Labor Plus LLC et al.
An NLRB ALJ ruled that an employer unlawfully withheld employees’ names and contact information in response to a union request despite the fact that the parties’ labor agreement did not require the association to provide such information. The ALJ held that the requested information was presumptively relevant and necessary to the union’s collective bargaining responsibilities and representational role. In so holding, the ALJ rejected the association’s claim that it was withholding the information due to privacy concerns, stating that employees’ addresses and telephone numbers were neither private nor confidential, and noted that the association did not even offer to provide the information pursuant to a protective order. Poudre Valley Rural Electric Association Inc. v. International Brotherhood of Electrical Workers Local 111 AFL-CIO.