• The NLRB held that a successor employer that acquires the assets of a unionized hospital must recognize and bargain with a union that initially demanded bargaining with an inappropriate employee unit, but later “perfected” the unit by dropping several job categories. Specialty Hospital of Washington-Hadley (SHW) acquired the assets of another hospital, hiring nearly all of its union-represented employees. SHW then denied the union’s request for recognition and bargaining because of the inclusion of guards and professional pharmacists in the unit. The union removed these employees from the unit and renewed its request. SHW again refused to bargain with the union. The NLRB held that SHW violated Sections 8(a)(1) and 8(a)(5) of the NLRA by denying the union bargaining rights. Specialty Hospital of Washington-Hadley LLC.
  • An NLRB administrative law judge held that employees’ off-hours postings on Facebook, complaining about working conditions, were protected by the NLRA. A co-worker had commented about the employees’ job performance. In response, the employees posted complaints on Facebook about their working conditions. The employees were then fired. The judge ruled that the employer, Hispanics United of Buffalo Inc., had to rehire the employees because they had “a protected right to discuss matters affecting their employment amongst themselves.”  Hispanics United of Buffalo, Inc. and Carlos Ortiz.
  • The U.S. Court of Appeals for the Seventh Circuit affirmed a district court’s dismissal of the First Amendment claims made by non union home-care personal assistants that were required to pay fair share fees to the union.  The personal assistants provided in-home care to disabled patients through two Medicaid waiver programs. A collective bargaining agreement between the state and union for personal assistants under the first program (first group) includes a fair share provision. Personal assistants under the second program (second group) rejected representation by the union. The court rejected the first group’s argument that the fair share provision violated their First Amendment rights to free association and free speech. The court argued that a Supreme Court case mandating union fees to non-members, Abood v. Detroit Board of Education, applied because the personal assistants were employed by the state rather than their patients. The court also rejected the second group’s argument that they are constitutionally harmed by the mere threat of a collective bargaining agreement with a fair share provision. The court argued that since the second group was not unionized, their claims were unripe.  Harris v. Quinn.
  • In a 2-1 decision, the NLRB upheld a union’s victory in a secret ballot election despite its use of a flier that had photographs of employees with the phrase “We’re voting Yes for 1199SEIU.”  Many of the employees had not yet decided to vote for the union and had not authorized the statement on the flier. Yet, the NLRB majority found that the flier did not taint the election since the employees depicted had signed a release allowing the union to use their name, images, and statements supporting the union. Furthermore, the majority found that the flier could easily be recognized as propaganda. Member Hayes dissented, arguing that the flier misrepresented facts and interfered with the rights of the identified worker to refrain from making such public declarations. 1621 Route 22 W. Operating Co. d/b/a Somerset Valley Rehab. & Nursing Ctr.
  • The Ninth Circuit vacated a NLRB decision and held that two Nevada hotel-casinos violated the NLRA by stopping deductions for dues from employee paychecks. When their collective bargaining agreements expired the two employers stopped checking off dues. The unions filed an unfair labor practice charge claiming that the cessation of dues-checkoff violated the unilateral change doctrine in the Supreme Court’s NLRB v. Katz decision. In its third remand, the Ninth Circuit held that in a right-to-work state, where dues-checkoff does not exist to implement union security, dues-checkoff is akin to any other term of employment that is a mandatory subject to bargaining. Local Joint Executive Board v. NLRB.
  • The NLRB held, in a 2-1 decision, that a hospital’s employee policy banning the use of cameras for photographing patients or hospital facilities did not violate the right of employees under Section 7 of the NLRA to engage in union protected concerted activity. A few months after a CWA Local 7019 organizing drive was under way, Flagstaff Medical Center in Arizona reviewed and updated its policies to prohibit employees from using cameras for the recording of images of patients and hospital equipment, property, and facilities. The majority held that employees would reasonably interpret the policy as a legitimate means of protecting the privacy of patients and their hospital surroundings, not as a prohibition of protective activity. Member Pearce dissented, finding the rule overly broad and possibly banning actions performed by employees for their mutual aid and protection. Flagstaff Med. Ctr., Inc.
  • A federal judge for the U.S. District Court for the Central District of Illinois dismissed a suit brought by Council 31 of the American Federation of State, County, and Municipal Employees. The suit was brought on behalf of 30,000 state employees and challenges the state’s denial of a 2 percent wage increase required under the existing collective bargaining agreement. The judge held that the union presented no evidence or case law establishing that the failure to provide a relatively small raise constitutes substantial impairment of the contract. The judge also mentioned that the wage freeze promotes cost containment, an important factor given that Illinois is in a state of financial crisis. The union intends to file an immediate appeal. AFSCME Council 31 v. Quinn.
  • The U.S. District Court for the Southern District of Iowa dismissed a lawsuit challenging Gov. Terry Branstad’s executive order which prohibits the use of project labor agreements (PLAs) on state funded construction projects. After Gov. Branstad issued the executive order, two state funded projects that included PLAs removed the language from their bid specifications. The trade councils involved in the projects then initiated a lawsuit, arguing that the executive order violated the Act and their members’ federal rights and that the order breached their contracts and violated the Iowa Constitution. The court, relying on Building and Construction Trades Dep’t, AFL-CIO v. Allbaugh, 295 F. 3d 28 (D.C. Cir. 2002), dismissed the lawsuit, finding the governor’s actions proprietary rather than regulatory. Central Iowa Bldg. & Constr. Trades Council v. Branstad.
  • The U.S. District Court for the District of Arizona granted a preliminary injunction to bar enforcement of the Protect Arizona Employees’ Paychecks From Politics Act, which was passed in April 2011. The Act requires labor unions and other organizations collecting funds through payroll deductions to disclose the funds they use for political purposes. The Act also prohibits employers from making such deductions without an employee’s annual authorization. The court determined that the Arizona Education Association is likely to succeed in showing that the Act violates the First Amendment. United Food & Commercial Workers Local 99 v. Brewer.
  • The Fifth Circuit enforced  an NLRB decision that an investment and asset management firm, Oaktree Capital Management, was liable for an unfair labor practice committed by the local managers of a resort hotel. Oaktree was the general partner or investment manager for three investment funds. Oaktree acted on behalf of the funds to purchase several entities that had owned the resort hotel. Oaktree kept one of the entities, Kuilima Resort Co., and then created a subsidiary for Kuilima that then leased the resort from Kuilima. Oaktree then retained another firm to manage the resort. The court acknowledged that it was not clear whether Oaktree itself owned the resort, but since “Oaktree maintained ultimate control over the Resort,” they should share responsibility for the unfair labor charge. Oaktree Capital Mgmt. v. NLRB.
  • The U.S. District Court for the Western District of North Carolina granted a preliminary injunction, ordering the US Airline Pilots Association to stop encouraging members to sabotage and slow down airport operations. The members were engaged in a variety of activity intended to pressure US Airways during collective bargaining negotiations, such as slowing taxiing on the runway, submitting excessive maintenance paperwork, and calling in sick or fatigued for scheduled flights. The court rejected the union’s argument that such activities were solely focused on encouraging safety and held that the union was violating the Railway Labor Act.  US Airways v. US Airline Pilots Ass’n.
  • An NLRB administrative law judge issued a decision on whether an auto dealership committed an unfair labor practice by terminating a salesman for two postings on Facebook. In the first posting, the salesman posted pictures of a sales event and ridiculed management for the inferior quality of the food and beverages served at the event. In the second posting, the salesman posted pictures of an auto accident at a nearby dealership and included a series of caustic comments. The judge found that the salesman’s comments surrounding the sales event constituted protected concerted activity under the NLRA because the posting related to compensation, namely how the event negatively impacted the ability to earn commissions. The judge, however, found no protection for the salesman’s comments with respect to the auto accident and ultimately found that his termination did not violate the NLRA.  Karl Knauz Motors Inc.