The United States Court of Appeals for the Tenth Circuit ruled that the National Labor Relations Board (NLRB or Board) correctly held that Harborlite Inc.’s threat to hire permanent replacements during a lockout did not convert the lockout into an unfair labor practice warranting an award of back pay. Harborlite, a Colorado mine operator, locked out employees represented by IBT Local 455 after its final contract offer was rejected. Although the mine operator threatened at the time of lockout that it planned to hire permanent replacements, it later informed the union that the hiring of any replacements would be temporary in nature. A divided Board held that while the threat itself violated federal labor law, it did not render the lockout illegal. On appeal, the Tenth Circuit agreed, questioning, without deciding, the union’s assertion that hiring permanent replacements during a lockout was a per se violation of the National Labor Relations Act (NLRA). Even assuming that it were a violation, the court held that a single threat that was never acted upon did not make an otherwise lawful lockout unlawful. Emphasizing that the mine operator never acted on the threat, the court distinguished the Board’s decision in Ancor Concepts, which held that an employer’s statement to locked-out employees that they had in fact been permanently  replaced rendered the lockout illegal. Teamsters Local 455 v. NLRB.

The United States District Court for the District of Minnesota denied a motion for preliminary injunction from nine home care provider plaintiffs seeking to halt an election in which thousands of in-home care providers will decide whether to be represented by SEIU Healthcare Minnesota. The home care providers argued that Minnesota’s recently enacted Individual Providers of Direct Support Services Representation Act, which allows the state- subsidized home care workers to unionize under Minnesota’s Public Employment Labor Relations Act, was unconstitutional as state certification of an exclusive bargaining representative would violate the providers’ First Amendment rights by making them associate with the SEIU or any other union. After collecting more than 9,000 authorization cards seeking to have the union designated as the home care providers’ exclusive bargaining representative, the SEIU petitioned for recognition and a secret ballot election was launched. The court held that the motion was premature, reasoning that the motion was based on a union becoming the exclusive bargaining representative, an event that had not yet occurred and might not occur at all. The court further held that merely holding an election that may violate the First Amendment is in, of itself, a violation of the First Amendment. However, the court added that the plaintiffs could renew the motion if the SEIU wins certification, which, as reported above, has since occurred. Bierman v. Dayton.

The United States District Court for the Western District of Arkansas granted the NLRB’s motion for preliminary injunction under Section 10(j) of the NLRA, finding reasonable cause to believe that an Arkansas bakery committed a series of unfair labor practices that tainted an employee petition signed by 132 of 199 bargaining unit employees to decertify a Bakery, Confectionary and Tobacco Workers and Grain Millers (BCTGM) local as the employees’ bargaining representative. The court ordered the bakery to restore the union’s bargaining rights and plant access while the NLRB considers the legality of the bakery’s conduct leading up to its withdrawal of union recognition. An NLRB regional director issued a complaint alleging that the bakery withdrew recognition based upon a petition tainted by unfair labor practices, including union disparagement, employee interrogation, threats of facility closure, implied promises of wage improvements, and the installation of break room cameras that created an impression of union activity surveillance. While the ALJ found the allegations meritorious, the motion was filed because it could take months before the conclusion of the administrative proceedings before the Board. McKinney v. S. Bakeries, LLC.

On remand from the United States Court of Appeals for the District of Columbia Circuit, the NLRB reaffirmed its ruling that reduction of back pay awards by interim earnings in cases that do not involve a cessation of employment are improper. In 2004, the Board held that a Community Health Service, Inc. hospital violated the NLRA when it reduced the working hours of employees without bargaining with the USW. After the United States Court of Appeals for the Tenth Circuit enforced the Board’s order, the Board entered a supplemental order finding that the hospital owed several employees back pay. The hospital petitioned the D.C. Circuit to set aside the order, and the court remanded the case to the Board, stating that it wanted a more thorough analysis of the Board’s interim earnings ruling. The Board reaffirmed its holding, ruling that the hospital was required to make the employees whole without any offset of interim earnings against the back pay award. Citing public policy, the Board reasoned that a reduction in back pay in cases where there is not a cessation of employment is inappropriate because it would represent an unwarranted windfall to the employer, discourage compliance with the law, and potentially induce employers to delay making payments ordered by the Board in the hope that a longer period of interim employment would result in a reduction in back pay owed. Community Health Servs., Inc.

A divided NLRB ruled that Phillips Electronics North America violated the NLRA by maintaining an unwritten rule that discipline was confidential and prohibiting employees from discussing discipline on the warehouse floor at any time. A former material handler brought the unfair labor practices claim after allegedly being terminated after showing other employees a warning letter issued in connection with sexual harassment complaints raised against him by a co-worker. The administrative law judge (ALJ) ruled that Phillips did not have any formal, written confidentiality policy, and that there was not enough evidence to determine that employees were instructed that they were prohibited from discussing disciplinary actions with others. The ALJ further found that the employee’s termination did not violate the NLRA. The Board affirmed the ALJ’s ruling that the employee’s discharge did not violate federal labor law, but overturned the ALJ in ruling that Phillips violated the NLRA by enforcing an information confidentiality rule that prevented employees from discussing disciplinary actions with each other. Phillips Electronics N. Am. Corp.

In a 2-1 decision, the NLRB held that an original eligibility date applied to an election delayed by blocking charges. In this case, the Warehouse Production Sales and Allied Services Employees Union Local 811 filed a representative petition in March 2013. After the union and company entered a stipulated election agreement, an NLRB regional director approved the agreement on March 21, 2013. Consistent with Board case-handling procedures and precedent, voting was limited to employees employed during the last payroll period before the regional director’s approval. As a result of several unfair labor practice charges, the petition was delayed for several months and the election, originally set for April 16, 2013, was held in November 2013. The Board agreed with a regional office ruling that 23 voters were ineligible as they were not employees before the original eligibility date. Acknowledging the concern of voter disenfranchisement, the Board reasoned that the original eligibility date informed all interested parties of who could participate in the election, and mitigated the possibility of hiring decisions made to affect the election’s outcome. Tekweld Solutions, Inc.

A split NLRB ruled that a Jimmy Johns franchisee violated the NLRA when it terminated six employees for assisting an Industrial Workers of the World affiliate to distribute posters linking worker demands for sick leave with a message that consumers might buy contaminated sandwiches made by unhealthy employees. In so holding, the Board held that the workers’ actions did not constitute disloyalty or reckless disparagement, reasoning that the employees did not make an express claim that any customer had been ill as a result of contaminated food, but rather only suggested the potential for illness resulting from the preparation of food by sick workers. The dissent viewed the conduct as unprotected disparagement of the franchisee’s product, noting that the employees received unpaid sick leave, the posters exaggerated the potential for food contamination, and there was no reasonable correlation between the alleged health problem and the employer’s lack of paid sick leave. MikLin Enters. Inc. d/b/a Jimmy John’s.

A divided NLRB ruled that an aluminum company violated federal labor law when it fired an employee for allegedly making a “cut throat” gesture to another employee two weeks after returning from strike. Reversing the ALJ’s finding that the employee was discharged for violating the company’s zero tolerance anti-harassment policy, the Board ruled that it could not find that the policy was administered in a consistent manner and that the discharge conformed to an established disciplinary practice. The Board found compelling evidence of striker animus, noting that the employer made the discharged employee and others sign a no-strike pledge, and the discharge occurred shortly after a return from strike. Accordingly, the Board found that the company could not show it would have taken the same action in the absence of a strike. The dissent argued that the employee could not show that animus against protected activity motivated the discharge, reasoning that nearly all workers took part in the strike, there was no evidence that the employee played a significant role or was singled out, and the employee agreed to the no-strike pledge and was not disciplined for violating it. Nichols Aluminum, Inc.

A unanimous NLRB ruled that a Connecticut-based restaurant and bar violated federal labor law when it fired an employee for “liking” a Facebook status update of a former employee stating the employer improperly calculated tax withholdings. The Board interpreted the “like” as an approval of the original status update, and not an endorsement of any other comments stemming from the initial update. In a related case, the Board also held that the employer unlawfully fired another employee for commenting on the status update by endorsing the complaint of the employer’s tax withholding errors. In both cases, the Board rejected the employer’s argument that the discharged employees lost protection under the law by adopting defamatory and disparaging comments made by the former employee. Notably, in so holding, the Board clarified the framework for assessing comments made in the realm of social media. The Board rejected use of the Atlantic Steel framework, finding it ill-suited to cases involving off-duty, off-site use of social media to communicate with other employees and third parties. Rather, the Board analyzed the comments under the Jefferson Standard and Linn standards. Finding that the comments were sufficiently disloyal to lose protection under Jefferson Standard as no products or services were mentioned, and the employer did not show the comment to be “maliciously untrue” under Linn, the Board found the comments protected. A divided Board also struck down the employer’s Internet/blogging policy that prohibited inappropriate discussions about the company, management, or other works, finding that the policy could reasonably be interpreted by employees to restrict protected activities. Triple Play Sports Bar.

The Board ruled that Ralphs Grocery Co. violated federal labor law by firing a produce manager who refused to take a drug test without consulting a union representative first, saying the refusal was intertwined with the worker’s assertion of his Weingarten rights. Weingarten rights allow employees to insist on having a union representative present for an investigatory interview that the employee reasonably believes could lead to disciplinary action. The company said manager’s refusal was insubordinate and amounted to an automatic positive test result, but the Board said that wasn’t a valid defense because there was no way to divorce that refusal from the assertion of his Weingarten rights. Ralphs Grocery Co.

A divided NLRB found that a Fresh & Easy Neighborhood Market’s confidentiality rule was unlawful, concluding that workers would interpret the rule to bar discussions of things like wages and terms and conditions of employment. The NLRB General Counsel took issue with two sentences in the “confidentiality and data protection” section of the Fresh & Easy code which told workers to keep customer and employee information secure and warned that information must be used “fairly, lawfully and only for the purpose for which it was obtained.” The Board majority said the NLRB has repeatedly found rules with “similarly overbroad phrasing” to infringe on rights that are safeguarded by Section 7 of the NLRA. Fresh & Easy Neighborhood Market.

The NLRB found that a female employee’s efforts to obtain help from her Fresh & Easy Neighborhood Market co- workers in raising a complaint of sexual harassment to be concerted activity that is protected by Section 7 of the NLRA. Despite that finding, the NLRB said in this particular case – brought by a cashier at a Fresh & Easy in Phoenix – that the grocery store did not violate the NLRA when it questioned the cashier as to why she obtained witness statements from her coworkers and directed her not to continue to collect statements. The Board said that those requests, made by the employee relations manager at the Phoenix store, were narrowly focused and came during a company investigation into the employee’s sexual harassment claims. Fresh & Easy Neighborhood Mkt., Inc.

The NLRB held that an interstate water company violated its bargaining obligation under federal law when it declared an impasse in contract negotiations and changed employee benefits without first informing state agencies there was a labor dispute in progress. The Board found that American Water Works Co. made illegal unilateral changes in employees’ health and disability benefits. The Board determined that even if contract renewal negotiations with the Utility Workers Union of America were at an impasse, the company failed to notify state mediation agencies as required by the NLRA. American Water argued there was no state agency that had jurisdiction over a labor dispute involving 66 employee units in 15 different states, but the Board rejected the company’s contention and ordered the company to compensate employees for losses they experienced as a result of the company’s unilateral changes. American Water Works Co.

An NLRB ALJ found that Kellogg Co. legally locked out some 226 union members from its cereal plant in Memphis because a bona fide impasse had been reached in the wake of the BCTGM union’s refusal to negotiate proposals that were mandatory subjects of bargaining. The workers returned to work August 11, following a July 30 related federal court decision. The BCTGM Local 252G members employed at the Memphis plant had been locked out since October 2013, when contract negotiations stalled over Kellogg’s desire to use an alternative crewing schedule and also increase its use of “casual” workers at the plant. The casual workers would receive lower wages than their union-represented counterparts and no benefits. Kellogg Co.

An NLRB ALJ ruled that UnitedHealth Group Inc., violated federal labor law when it forced workers who had filed putative wage and hour class actions in federal court to instead arbitrate their allegations individually. Referencing the Board’s precedent in D.R. Horton – which determined that mandatory arbitration pacts requiring workers to waive their class or collective action rights violate the NLRA – the ALJ found that the UnitedHealth arbitration pact, as it precludes employee collective and class actions, violated the NLRA. United Healthcare Services Inc. et al. and Aviles et al.

An NLRB ALJ ruled that jewelry retailers Tiffany & Co.’s confidentiality policy was overly broad in violation of the NLRA. The policy prohibits employees from disclosing information readily available on employee lists, including names, addresses, and phone numbers of other employees. However, the judge ruled that Tiffany’s one-sentence affirmation of employee rights under the Act “immunizes” the company from liability for maintaining an overbroad statement on wage and salary disclosures. However, the ALJ added that he reached that conclusion only because a savings clause appeared immediately after the wage-and-salary rule and expressly referenced the illegal provision. Tiffany’s savings clause did not excuse the retailer’s maintaining other policies that prohibited employees from releasing the names of employees or communicating with media organizations. Employees would reasonably understand those rules violated their rights under the NLRA, and the savings clause did not expressly mention the rules or confirm the employees’ statutory rights. The judge ordered Tiffany to cease and desist from enforcing its overbroad rule regarding employee lists. Tiffany & Co. v. Shaun Duncan.

The NLRB reviewed and endorsed a 2012 ruling that the agency should order respondents in unfair labor practice cases to report back pay to the Social Security Administration and compensate employees for the tax consequence of lump-sum remedial payments. In 2012, NLRB Chairman Mark Gaston Pearce approved the policies in Latino Express Inc., along with then-Members Sharon Block and Richard F. Griffin. However, following the Noel Canning case, the Board decided to review the remedial issues de novo in the case of Don Chavas LLC, an Arizona food company that illegally discriminated against several employees for engaging in protected concerted activities. Pearce, joined in the new decision by Members Harry I. Johnson and Nancy J. Schiffer, said the Board is convinced that the remedial measures adopted in Latino Express “effectuate the policies” of the NLRA. Don Chavas, LLC.

An NLRB ALJ found that Fox Television Stations Inc. did not breach any labor laws when it implemented an agreement with unionized Los Angeles-based engineers that had not yet been ratified by the union’s members. The ALJ recommended that a complaint lodged by a CWA Local be dismissed, finding that the union was unreasonable in its negotiations with Fox, and that it refused to stick to terms it had previously agreed to, according to the decision. Fox Television Stations Inc. and National Association of Broadcast Employees & Technicians, the Broadcasting & Cable Television Workers Sector of the Communications Workers of America, AFL-CIO, Local 53.

A Wisconsin nursing home could not be liable for discontinuing a union dues checkoff agreement, because the U.S. Supreme Court’s recent Noel Canning decision undermined the only precedent supporting an unfair labor practice finding. At the time the NLRB General Counsel (GC) issued a complaint that Lincoln Lutheran Home illegally terminated a checkoff arrangement at the end of a union contract, Board precedent supported his position. However, an NLRB ALJ found that precedent was issued in 2012 when the Board lacked a valid three- member quorum. The ALJ found that the GC could not prevail against Lincoln Lutheran under the Board’s earlier position that a checkoff agreement terminates upon the expiration of an underlying contract. Lincoln Lutheran of Racine.

The NLRB announced that it ratified three regional director appointments and five administrative law judge (ALJ) selections made during the tenure of Board members that the U.S. Supreme Court recently ruled, in Noel Canning, had been invalidly appointed. In response, the NLRB unanimously approved “all administrative, personnel and procurement matters taken by the Board” between January 4, 2012, and August 5, 2013, when the five-seat labor Board lacked the three-member quorum it needs to operate because of the “recess appointments” successfully challenged by soda bottler Noel Canning.

The NLRB General Counsel’s Division of Advice concluded in a memorandum that the NLRB can and should assert jurisdiction over businesses that grow, process, and retail medical marijuana if they meet the Board’s monetary coverage standards. NLRB Associate General Counsel Barry J. Kearney wrote that the Board has clear statutory authority over employers in an already-sizeable medical marijuana industry in which labor disputes can affect interstate commerce. Kearney acknowledged that Northeast Patients Group, which does business as Wellness Connection of Maine, is operating in violation of the federal Controlled Substances Act, but found that the NLRB should not decline to assert jurisdiction over the employer on that basis. The Division of Advice also concluded that marijuana processors working for the company are employees under the NLRA rather than agricultural laborers outside the Act’s protection. The UFCW filed unfair labor practice charges against Wellness Connection in May and June 2013, alleging the employer engaged in illegal interrogation, surveillance, and discrimination.

The National Mediation Board (NMB) ruled that American Airlines and US Airways are operating as a single transportation system, allowing for a union to be selected to represent some 15,000 pilots at the merged carrier. The finding, which was sought by the Allied Pilots Association (APA) representing 9,859 American pilots, was opposed by the U.S. Airline Pilots Association, the bargaining agent for 5,121 premerger US Airways pilots. Next, the Board said it will determine union representation for the combined group and whether to hold a representation election. The unions were given 30 days to submit evidence of the required majority support from the new American’s pilots, such as signed authorization cards, seniority lists, or dues checkoff lists. Alternatively, after the 30-day period, the NMB could simply decide to certify APA as the union for the combined group. Allied Pilots Ass’n.

An Illinois appeals court denied a bid by six ALJs for the Illinois Commerce Commission (ICC) to join a union, ruling that they are “managerial employees” and thus barred from collective bargaining under state law. A unanimous three-judge panel upheld a decision by the Illinois Labor Relations Board that blocked the judges from joining an American Federation of State County and Municipal Employees unit, agreeing that the judges had enough influence over the utility regulator’s decisions to be considered management. While the ALJs only issue recommendations that the five ICC commissioners are not bound to accept, the panel pointed to testimony from the Chief ALJ that the commissioners agree with the judges “99 percent” of the time. American Federation of State County and Municipal Employees, Council 31 v. the Illinois Labor Relations Board et al.

The UAW was named in a suit by temporary workers in Michigan auto plants who accused the union of forcing them into bad contracts and accepting union dues from the workers without proper representation. The three- count complaint by nearly 200 workers of the Automotive Component Holdings, accuses UAW of failure of duty of fair representation, breach of contract, and fraudulent representation. In the suit, the workers accuse the UAW of breach of contract and fraudulent representation for its role in a string of employment changes going back to the 2009 bankruptcy of former Ford subsidiary Visteon Corp., an auto parts supplier spun off from the auto giant in 2000. They claim they endured bankruptcies and transfers to other plants, all while being treated differently than Ford UAW members. The workers seek restoration of their seniority to the dates they worked for Visteon, and not for subsequent plant operators. They also seek, among other remedies, the return of lost wages that resulted from UAW’s alleged failure to enforce contracts and a return of all union dues and initiation fees. Barker et al v. International United Auto Workers.

The British Columbia Labour Relations Board (BCLRB) upheld a unfair labor practices complaint filed by Teamsters Local Union 213 against Ikea Canada. The Board concluded that Ikea violated Canadian labor law when it negotiated directly with workers and offered all workers who crossed the picket line better working conditions (including a $2.50 an hour premium and a $500 bonus) than the working conditions that it had offered to the Teamsters at the bargaining table. The Board also affirmed that Ikea negotiated in bad faith. The BCLRB ordered Ikea to cease and desist from contravening the law and from committing further unfair labor practices. The employer was also ordered to pay damages to the Teamsters. The employees of the Ikea store in Richmond, British Columbia, have been locked out since May 13, 2013. Ikea Canada Limited Partnership v. Teamsters Local Union No. 213.