• The United States Court of Appeals for the D.C. Circuit decided to hold in abeyance a challenge to the NLRB’s issuance of changes to its representation election procedures because the changes were issued by a Board that lacked a quorum. The challengers, which include the U.S. Chamber of Commerce, previously obtained a favorable decision in the district court, which held that Member Brian Hayes failed to participate in the voting on the election procedures, and thus the Board lacked a quorum. However, the D.C. Circuit’s decision to hold the challenge in abeyance is based instead on Board Member Becker being a product of President Obama’s recess appointments, which the D.C. Circuit held were unconstitutional in its Noel Canning decision. Based on Noel Canning, the Board lacked a quorum to issue the election rule changes regardless of Member Hayes participation in the process. Chamber of Commerce v. NLRB.
  • The U.S. Court of Appeals for the Seventh Circuit dismissed a lawsuit by unionized truck drivers of beverage distribution company Judge & Dolph Ltd., which alleged that the company breached the parties’ collective bargaining agreement by terminating the drivers without just cause. The Seventh Circuit explained that the drivers could not maintain the action because the union had terminated the collective bargaining agreement before the company discharged the drivers. The Seventh Circuit also dismissed the drivers’ claim against their union for breach of the duty of fair representation, holding that the court lacked jurisdiction to consider the claim under the Labor Management Relations Act absent a viable claim that the employer breached the collective bargaining agreement. Rutherford v. Judge & Dolph Ltd.
  • A California Court of Appeal held that a former DirecTV Inc. supervisor’s retaliation and wrongful discharge claims premised on the supervisor’s wage complaints were preempted by the NLRA. In the case, former DirecTV supervisor Richard Romero alleged that he was discharged after making a series of complaints where he asserted that DirecTV’s pay practices for its production technicians violated California law. In holding that the claims were preempted, the court explained that Romero’s wage complaints arguably alleged an unfair labor practice under the NLRA, and thus fell within the NLRB’s exclusive jurisdiction. The court further explained that Romero’s supervisory status did not save his claims from preemption because even though supervisors are not “employees” protected by the NLRA, employers cannot fire supervisors when “such firing has the effect of interfering . . . with the section 7 rights of nonsupervisors.” Romero v. DirecTV Inc.
  • The U.S. Court of Appeals for the Sixth Circuit ruled that the SEIU did not run afoul of the Telephone Consumer Protection Act of 1991 by employing an automated call campaign to publicize alleged mistreatment of employees at the King’s Daughters Medical Center in Kentucky. SEIU directed automated calls to residents located near that hospital and allowed recipients of the calls to press a number and be re-directed to the hospital’s CEO, where the callers could then protest the hospital’s alleged mistreatment of employees. The hospital argued that the automated calls violated the Telephone Consumer Protection Act because they resulted in the hospital being inundated with calls, including over 500 calls to the CEO in a two-day period. However, the court held that the Act does not prohibit residents from making calls in response to an automated message, as long as the automated messages are not directed to the hospital’s emergency numbers or engage multiple hospital lines at once. Because there was no evidence that this occurred, the court held that SEIU did not violate the Act. Ashland Hospital Corp. v. Serv. Employees Int’l.
  • The U.S. Supreme Court denied a petition for review from the IBT Local 523, challenging the Tenth Circuit’s decision sanctioning the union for appealing an NLRB decision that held that the Teamsters had committed an unfair labor practice by requiring Interstate Bakeries Corp. to put an employee at the bottom of a seniority ranking list because he was not a union member. The Tenth Circuit assessed the Teamsters double costs plus $4,000 for the “frivolous” appeal because the court had previously ruled on the same issue between the parties in 2009. Teamsters Local 523 v. NLRB.
  • The D.C. Circuit granted Department of Labor Secretary Hilda Solis’ motion to dismiss a union member’s complaint, which alleged that the DOL lacked authority to rescind a rule requiring labor unions to disclose more extensive information on form LM-2. The rule had been issued under the Labor-Management Reporting and Disclosure Act by President Bush’s Labor Secretary, Elaine Chao. The plaintiff argued that under the LMRDA the Secretary has authority to rescind rules only when necessary to prevent avoidance of reporting requirements. In rejecting the plaintiff’s argument, the court held that under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), the LMRDA did not specifically address the issue and thus the court was required to defer to the Secretary’s reasonable interpretation of the LMRDA. Mosquera v. Solis.
  • The NLRB’s Office of General Counsel held in abeyance Wal-Mart Stores Inc.’s unfair labor practice charge against the United Food and Commercial Workers Union (“UFCW”). The charge alleges that the UFCW unlawfully picketed Wal-Mart’s stores without filing a timely representation election petition. Wal-Mart filed the charge after the UFCW and its affiliate, OUR Walmart, allegedly engaged in a several-month-long picketing campaign at Wal-Mart’s stores designed to gain recognition without ever filing an election petition. Under Section 8(b)(7)(C) of the NLRA, a union that engages in picketing for a representational objective must file an election petition within a reasonable time period not to exceed 30 days. The NLRB decided to hold the charge in abeyance after the UFCW promised to stop any picketing for 60 days, disavowed any aim to obtain recognition through picketing, and promised to consent to a court order should it violate Section 8(b)(7)(C) of the NLRA in picketing Wal-Mart’s stores in the future. The NLRB will dismiss the charge in six months if the UFCW follows through on its promises.