• The NLRB found that the United Healthcare Workers West unlawfully enforced the union-security clause of its contract with Lakewood Regional Medical Center by causing the medical center to terminate an employee without first discharging the union’s fiduciary duties. The employee, a former union steward, began remitting dues payments to the union. After several correspondences between the union and employee, the union directed the medical center to terminate the employee. The NLRB found that the union did not fulfill its fiduciary duty to deal fairly with the employee before seeking to terminate him. According to the standards set in Philadelphia Sheraton Corp., before seeking the employee’s termination, the union must provide an employee with a precise amount of dues owed, the time period in question, the method of computation and a reasonable opportunity to meet the dues obligation. The NLRB ordered the union to rescind its request for the employee’s termination, make the employee whole for any loss of pay and benefits since his discharge, and post and send out a notice telling members that it violated the law. Service Employees Int’l Union, United Healthcare Workers West (Lakewood Reg’l Med. Ctr.).
  • The U.S. Court of Appeals for the Seventh Circuit upheld a jury verdict in favor of an administrative assistant who alleged that IBEW Local 159 retaliated against her for assisting an African American union member with his race discrimination claim. The African American union member filed a claim against the union with the Madison Equal Opportunities Commission (“MEOC”). The administrative assistant, who worked for the union, raised the issue with her supervisor and responded to a questionnaire from the MEOC. Her supervisor then took away job duties, denied overtime, and disciplined her for minor infractions. She brought a Title VII and Section 1981 claim against the union. At trial, the district court allowed the administrative assistant to submit the union member’s MEOC complaint. Blue v. International Brotherhood of Elec. Works Local Union 159.
  • The NLRB upheld an Administrative Law Judge’s (“ALJ”) findings that Dish Network Corp. committed various unfair labor practices in a 2009 union organizing campaign. In doing so, Board member Sharon Block urged the Board in a concurring opinion to revisit a 1985 ruling in Tri-cast, Inc. 274 NLRB 377, that allows employers to tell workers that opting for union representation will cause them to forfeit their right to bring individual complaints directly to management. Dish Network Corp.
  • The D.C. Circuit enforced an NLRB order that a property owner cannot bar employees of an onsite contractor from distributing union related handbills on the property unless the property owner can show that the exclusion is justified by a legitimate business reason. New York-New York LLC v. NLRB.
  • The National Mediation Board (“NMB”) ruled that Pinnacle Airlines, Colgan Air, and the former Mesaba Aviation are operating as a single carrier for the purposes of employee representation. Pinnacle Corp., the parent company of Pinnacle Airlines, purchased Colgan in 2007 and Mesaba in 2010. Mesaba ceased operations and as part of Pinnacle’s restructuring plan after filing for bankruptcy, it plans to wind-down Colgan operations. The NMB reasoned that there was substantial integration of operations, financial control, and labor and personnel functions. The Association of Flight Attendants filed the application with the NMB seeking the decision.
  • The D.C. Circuit upheld the NLRB’s ruling that a newspaper publisher illegally disciplined employees who engaged in protected concerted activity. When Koryn Nako, a union steward brought a nonemployee union official onto company premises, Nako’s supervisor escorted the official out and confronted him. Another union steward, Hunter Bishop, then became involved in the conversation, asking whether interviewing Nako could result in her being disciplined. The employer interviewed Nako outside of Bishop’s presence, issued Nako a warning and terminated Bishop for being disrespectful to a supervisory employee. The D.C. Circuit held that the discipline was illegal. In addition, it found that the employee did not forfeit his right to reinstatement by making critical public comments about the employer after his termination. The D.C. Circuit also upheld the NLRB’s findings that the employer violated the Act by interrogating and disciplining several other employees, and firing one, who participated in secretly recording a conversation with a supervisor. Stephens Media LLC v. NLRB.
  • The NLRB issued a complaint against 24 Hour Fitness USA Inc. claiming that the company violated the Act by maintaining an arbitration policy that barred workers from pursuing class or collective actions. The complaint seeks an order requiring the company to cease and desist from maintaining and enforcing the arbitration policy. A hearing is scheduled for June 11. 24 Hour Fitness USA Inc. and Alton J. Sander.
  • The SEIU filed a complaint with the International Labor Organization’s (“ILO”) Committee on Freedom of Association challenging Alabama’s immigration law (H.B. 56). The SEIU alleges that H.B. 56 is harmful to union’s ability to organize and thus a violation of ILO Conventions 87 and 98. In particular, the SEIU finds three provisions of H.B. 56 particularly harmful to unions and organizing: Section 11(a), which makes it a state crime for undocumented immigrants to apply for, solicit, or perform work; Section 13, which imposes penalties for concealing, harboring, shielding, or transporting undocumented immigrants; and Section 27, which prevents courts from enforcing contracts to which undocumented immigrants are parties. Although the United States has not ratified ILO Conventions 87 and 98, the SEIU argues that the Committee on Freedom of Association retains jurisdiction because the United States is an ILO member.
  • The NLRB Associate General Counsel updated Regional offices on procedures they should follow in evaluating locations for rerun elections in light of the recent NLRB decision in 2 Sisters Food Group, Inc., 357 NLRB No. 168 (2011). In the decision, the NLRB set out factors that should be considered in deciding whether to hold a rerun election offsite: (1) the petitioner’s objection to having the election on the employer’s premises against the employer’s request that it be held there; (2) the nature and extent of the employer’s prior unlawful or allegedly-unlawful conduct; (3) the advantage available to the employer if the election is conducted on its premises; and (4) the proposed alternative sites.

Social Media ULP Cases

  • An NLRB ALJ held that a posting to an anti-union Facebook page by an restaurant manager of contact information for a pro-union employee that urged others to text the employee constituted harassment and violated Section 8(a)(1) of the NLRA. However, the ALJ ruled that other disparaging remarks and pictures posted to the anti-union Facebook page by workers and managers regarding the pro-union current and former employees did not violate the Act. Miklin Enterprises Inc. d/b/a/ Jimmy John’s and Industrial Workers of the World.
  • An NLRB ALJ held that a clothing store must reinstate three employees who were fired for Facebook posts where they criticized their manager and discussed bringing a California employee rights handbook to the store. The posts discussed closing the store earlier in the evening due to safety concerns since the store was located in an unsafe neighborhood. The store argued the decision to terminate the employees was based on the employees’ insubordination and personal use of store computers. The judge dismissed the store’s argument finding that the employees had been fired for engaging in protected concerted activity. Design Technology Group LLC d/b/a Bettie Page Clothing.