The U.S. Court of Appeals for the Ninth Circuit held that a union’s service of a subpoena only to an employer, and not to the employer’s counsel, in violation of NLRB procedural rules, does not excuse the employer’s failure to challenge the subpoena within five days of receipt. Holding that Fresh & Easy Neighborhood Market Inc. failed to exhaust its administrative remedies before the NLRB, the court noted that the employer was not unduly prejudiced by the United Food and Commercial Workers’ failure to serve its attorney, which received the subpoena via the employer during the five-day period. The underlying dispute between the parties is an unfair labor practices claim arising from alleged no-solicitation notices in Fresh & Easy’s supermarkets. NLRB v. Fresh & Easy Neighborhood Mkt., Inc.

The U.S. Court of Appeals for the District of Columbia Circuit held that a construction materials supplier must reinstate and pay back pay to the workers it refused to reinstate following an unfair labor practices strike. Indiana-based Spurlino Materials LLC argued that it was not required to reinstate the workers, members of Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local 716, because they were engaged in an economic strike. But because an unfair labor practice was a contributing factor to the strike, the court determined that the strike could be categorized as an unfair labor practices strike. The court noted that the union did not make economic demands during the strike and that the union cited company’s refusal to reinstate a union supporter who the company unlawfully discharged as a reason for their strike. Spurlino’s argument that the strike was an unprotected partial strike because the union offered to continue working on one project was similarly rejected, as the court determined that it was reasonable for the union to honor the no-strike clause in the labor agreement for that project. Spurlino Materials, LLC v. NLRB.

As was expected, the NLRB held that an American Express subsidiary’s class-waiver arbitration policy is unlawful under the National Labor Relations Act (NLRA). In spite of the fact that the policy expressly carves out claims under the NLRA, the Board held that the policy is ambiguous about whether employees retain the right to file charges with the Board when it is read alongside the policy acknowledgment form, which does not contain an exception. Amex Card Servs. Co.

Similarly, a Board panel held (2-1) that a California property management company’s arbitration policy that includes a class action waiver and opt-out provision is unlawful. In response to workers filing a wage-and-hour class action against the company, the company asked the court to enforce the arbitration provisions. Instead, the Board ordered the company to revise its mandatory arbitration agreement to reflect that signing it does not constitute a waiver of employees’ rights to file employment-related class or collective actions in any forum. Haro v. Nijjar Realty Inc.

The U.S. Court of Appeals for the Fourth Circuit held the Board properly revisited rulings in two consolidated cases that the circuit court earlier held were decided without a constitutional quorum, even though the NLRB did not obtain a court remand authorizing such action. The Fourth Circuit had denied enforcement of unfair labor practice orders against the two companies in 2013 because the three-member panels that decided the cases lacked a quorum, under the Supreme Court’s Noel Canning decision. The circuit court additionally denied the NLRB’s request that the cases be remanded for further action. The NLRB notified the parties involved that they would consider the cases “anew,” and both companies objected arguing that without a remand from the Fourth Circuit, the Board lacked jurisdiction to take further action. The NLRB rejected these objections, and again ruled against the companies. In an unpublished per curiam opinion, the circuit panel found that the NLRB had jurisdiction to issue new decisions in the cases because the earlier court ruling on the quorum issue did not resolve the merits of the unfair labor practice cases. The Fourth Circuit further stated that the NLRB had properly revisited the case because the Noel Canning “decision finding the lack of a proper quorum clearly contemplates further Board action.” Huntington Ingalls Inc. v. NLRB.

The NLRB ruled that Prime Healthcare Management violated federal labor law when it replaced one of its health plan options with an in-network-only plan for union members. Prime and the union, SEIU-United Healthcare Workers West, are currently negotiating terms for employees at the California hospital. The hospital argued that negotiations had reached an impasse with the union on health plans, but the NLRB held that there was not a contemporaneous understanding of impasse. The NLRB held that by refusing to provide information to the union about the quality of care at in-network hospitals, Prime further violated federal labor law as this information was relevant and not confidential. The Board ordered the hospital to cease and desist in its refusal to bargain collectively with the union, to provide requested information, rescind the changes to health care coverage that were imposed unilaterally, and reimburse employees for costs sustained due to that imposition and for tax consequences of receiving lump-sum back pay awards. Prime Healthcare Centinela, LLC d/b/a Centinela Hospital Medical Center and SEIU-United Healthcare Workers-West.

A court for the Southern District of California dismissed Prime Healthcare’s RICO claims against SEIU, United Healthcare Workers West (UHW), and Change to Win labor federation. Prime had alleged the labor unions violated RICO laws by using coercion and extortion against hospital management. The court found Prime’s claim that the unions used an agreement with the California Hospital Association as a way of coercing Prime into opening its hospitals was unfounded. Lastly, the court found that Prime’s claims could not survive because Prime could not show the unions had caused any actual injury. Prime Healthcare Servs., Inc. v. Service Employees.

A federal district court in Michigan ruled that Kalitta Air’s unilateral training pay increase for newly hired pilots violated its bargaining agreement with the pilots’ union. IBT has been negotiating a new contract with the carrier since 2011, and argued that the ongoing negotiations required the carrier to maintain the status quo. The carrier argued that it needed to raise the weekly training pay in order to attract new pilots. The union responded that the unilateral change would undermine its bargaining authority, while the company contended that its management rights gave it discretion over provisions of the training requirements and compensation. The court ruled that the contract language that newly hired pilots would not receive flight pay until completion of training was an express provision of the agreement, and therefore the pay increase was unlawful. The court granted a preliminary injunction to stop the carrier from unilaterally implementing the raise. Teamsters Local 1224 v. Kalitta Air, LLC.

The Board held that Shore Point Distribution Co., a New Jersey alcoholic beverage distributor, did not violate labor laws when it did not bargain with Teamsters Local 701 before installing a GPS tracking device on an employee’s truck. The parties’ labor agreement contained work rules prohibiting stealing time and requiring that drivers adhere to federal regulations that accurately account for their time. The GPS device was used to assist with a private investigator’s determination of whether the employee was stealing company time and the union did not object to the practice of the company using private investigators. The NLRB held that the GPS tracking device was a mandatory subject of bargaining, but that it was not a material change in the terms and conditions of employment because it was used in connection with the private investigation. Shore Point Distribution Co.

The NLRB dismissed nine unfair labor practice complaints filed against American Apparel, after eight employees were terminated and one was suspended for participating in a protest involving a piñata resembling the CEO being stabbed with a stick in the company’s parking lot. The NLRB found that the protest was not a union activity, nor a protected concerted effort to improve wages or working conditions.

An NLRB Administrative Law Judge (ALJ) held that an International Brotherhood of Electrical Workers local did not violate federal labor law with a rule requiring that members wishing to resign show up at a union hall with a photo ID and written request. The NLRB General Counsel argued that the union’s maintenance of the resignation rule violated the NLRA. The ALJ dismissed the charge finding that the rule did not restrict resignation, but rather set forth a manner and procedure for member action. While the ALJ held that the rule did not, on its face violate federal labor law, he remained skeptical that the union could, in practice, reject a resignation that did not comply with the rule, and not violate federal labor law. Local 58, Electrical Workers.

The NLRB ruled that a St. Louis area Chipotle violated federal labor law when it fired a worker who participated in the “Show Me 15” campaign to raise the minimum wage to $15 per hour and discussed pay with other employees. The Board affirmed an ALJ’s finding that Chipotle violated the NLRA by discouraging workers from engaging in protected activities, including barring them from discussing wages, encouraging them to stay away from union organizers, and firing workers engaging in union activity. The Board ordered reinstatement with back pay and Chipotle to refrain from trying to prevent employees from engaging in protected activities. Chipotle Services LLP.

An NLRB ALJ found that a New York nursing home committed numerous unfair labor practices and ordered the nursing home to bargain, despite the fact that the union lost a representation election. The nursing home, owned by Wingate Healthcare Inc., was ordered to bargain with the SEIU-United Healthcare Workers East, which had sought to represent 140 workers at the facility. The ALJ found that because there were various instances where the employer had interfered with a representation election, it was required to bargain under NLRB v. Gissel Packing Co., (holding that the NLRB may order the employer to bargain as a remedy for an unfair labor practices related to representation election). The ALJ noted that bargaining orders are uncommon, but are issued in cases in which unfair labor practices are particularly numerous or egregious. The ALJ found two “hallmark” unfair labor practices that made the bargaining order warranted: 1) granting a two percent wage increase to the workers before the representation election and 2) discharging an employee who was involved in union activity, despite the employer’s claim that she was terminated for alleged abused of a patient. The ALJ found that the employer failed to conduct a full and fair investigation and therefore concluded that the discharge was motivated by her union activity. The ALJ also recommended that the Board order the employer to cease and desist and reinstate the employee with back pay. Wingate of Dutchess, Inc.

A Board panel ruled (2-1) that the Office and Professional Employees International Union Local 2, representing employees in Maryland and Virginia, were entitled to information about ADT LLC’s administration of a commission-based pay plan, even though the union had waived right to bargain on this topic. The Board found the union had a right to this information because it would be relevant to future negotiations and the union’s evaluation of possible grievances against ADT. ADT transferred installers at the two locations to hourly pay from the commission based pay structure, without bargaining with the union. The union did not question ADT’s authority to make a change, but asked for a business justification, information about the payroll records for the installers, and asked to bargain on the change. The company refused to bargain or provide the requested information based on a waiver in the contract. An ALJ had found that the union was entitled to the payroll information, but dismissed the allegation that the company had violated the NLRA by refusing to provide information about company’s business justifications. The NLRB disagreed, finding that the justifications were also relevant to the union’s duty to bargain and to employee representation and ordered that ADT provide all requested information. ADT, LLC.

The NLRB’s Division of Advice issued a memorandum stating the Board should not assert jurisdiction over a social worker’s claim that she was unlawfully fired by a Catholic Middle School. The social worker alleged that she was fired for complaining about increased health insurance costs whereas the school alleged that she was fired for protesting the requirements that staff members participate in religious discussion and prayer with students. The Board stated that because the school holds its faculty and social workers as performing religious function, the NLRB should not assert jurisdiction because inquiring into those types of religious matters would violate the Frist Amendment, according to the U.S. Supreme Court, citing NLRB v. Catholic Bishop of Chicago.

U.S. Court of Appeals for the District of Columbia Circuit upheld, in part, a recent Board ruling invalidating provisions of an employee handbook. The D.C. Circuit held that the NLRB appropriately ruled that Hyundai American Shipping Agency Inc.’s “investigative confidentiality,” “electronic communications,” and “working hours” rules violated Section 8(a)(1) of the NLRA. The Board determined Hyundai’s “investigative confidentiality” rule violated the Act because it purportedly prohibited employees from revealing information about matters under investigation. The D.C. Circuit agreed, concluding the “blanket confidentiality rule clearly limited employees’ Section 7 rights to discuss their employment.” The D.C. Circuit similarly found that employees could reasonably construe Hyundai’s “electronic communications” and “working hours” rules as prohibiting Section 7 activity, by prohibiting them from sharing not just confidential information, but also information that concerned the terms and conditions of employment. In contrast, the circuit court declined to enforce the Board’s decision to invalidate Hyundai’s “complaint provision” and “personnel files” rules. The D.C. Circuit reversed the Board’s invalidation of Hyundai’s “complaint provision,” which urged employees to voice their complaints directly to their supervisors or to human resources. The circuit court determined that a reasonable employee would not read the rule as prohibiting complaints protected by Section 7 as the policy was “neither mandatory nor preclusive of alternatives.” Moreover, the court noted that the provision did not prescribe penalties for making complaints to other employees. Hyundai Am. Shipping Agency, Inc. v. NLRB. For more details, see our client briefing, D.C. Circuit Enforces NLRB Handbook Decision.

The NLRB ordered Delek Refining Ltd. to bargain with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO after rejecting the company’s argument that storeroom attendants, already represented by the union, did not have sufficient common interests with other workers at a Tyler, Texas refinery. Delek challenged the June certification of the union as the representative of storeroom attendants in addition to the refining company’s regular maintenance, production, operating, and safety employees. However, the Board panel found that Delek failed to provide any new evidence to contest the June representation certification, and therefore failed to raise any “representation issue that is properly litigable.” The Board ordered the company to cease and desist from failing to recognize the union as the exclusive collective bargaining unit for the workers, and required it to bargain with the union on terms and conditions of employment upon request and detail any agreements in writing. The panel also ordered the company to post notices in its Tyler facility explaining that workers have the right to join a union and affirming that Delek won’t restrain employees from exercising that right. Delek Refining Ltd.