The NLRB found that Oncor Electric Delivery Co., a Texas-based energy utility, violated the National Labor Relations Act (NLRA) when it terminated an employee who had testified before the state legislature about the safety of smart electric meters. Oncor argued that the employee’s testimony was maliciously untrue, but the Board rejected the argument and ordered reinstatement. Oncor Electric LLC.

A federal District Court in West Virginia ordered UNITE HERE Health to pay $5.5 million to Greenbriar Hotel Corp. and its employees. The Court held that UNITE HERE had amended health plan documents to retain excess assets at the expiration of the plan instead of transferring the assets to a new plan. The court held that the amendment breached the union’s ERISA duties because it was made for the purpose of depriving participants of funds intended for their benefit. Greenbriar Hotel Corp. v. UNITE HERE Health.

An International Association of Machinists local avoided a decertification petition despite failing to comply with NLRB election rules. The Board held that the union could not argue that a labor contract barred decertification because it failed to timely serve a statement of position. However, the Board held that the contract bar was raised by the petitioner, and the regional director was permitted to address the issue in his own in denying the employees the opportunity to vote on decertifying the union. The union represents 60 employees at Brunswick Bowling Product’s Muskegon, Michigan, plant. Brunswick Bowling Prods., LLC.

The NLRB has approved of a narrowly-tailored confidentiality provision in a last-chance agreement signed by a union steward. Although the Board has disapproved of rules or policies that appear to limit employees from exercising rights under the NLRA, it held that the steward’s agreement with S. Freedman & Sons Inc. was unlikely to impair the steward’s or other employee’s rights to share information. It further concluded that an employee could waive such rights and promise confidentiality in exchange for reinstatement. S. Freedman & Sons, Inc.

The Court of Appeals for Ninth Circuit decided a trio of consolidated appeals regarding the extent to which the NLRA preempts state law claims because they substantially depend on an interpretation of a collective bargaining agreement. In one case, a nurse’s state law claim that she was entitled to premium pay for overtime was preempted by the NLRA because her claim turned on an interpretation of a collective bargaining agreement’s definitions of which shifts qualified for premium pay. In another case, truckers’ claims regarding payroll deductions and fiduciary duties were not preempted because they arose under state law independently of any bargaining agreement. Finally, the Court held that a nurse practitioner’s claim that her employer’s credentialing committee violated an agreements “just cause” standard was preempted because the claim depended entirely upon an interpretation of the bargaining agreement. Kobold v. Good Samaritan Reg’l Med. Ctr.

Creative Vision Resources LLC, a Louisiana-based waste disposal company that was a successor entity to Berry Services Inc., must bargain with the union that represented former Berry employees. According to the NLRB, Creative Vision rehired former Berry employees without interviewing them or checking their references, and it began its operations entirely staffed with former Berry workers. The Board, relying on the U.S. Supreme Court decision NLRB v. Burns Security Systems, held that Creative Vision was obligated to bargain with the union because it was a successor entity that retained all employees in a work unit. Creative Vision Resources LLC and Local 100, United Labor Unions.

The NLRB found that Wayron LLC, a Washington-based metal fabricator, illegally refused a union audit request amid labor negotiations. Wayron argued that it was under competitive pressure to achieve wage cuts in the negotiations and that it would need to show reduced expenses in an effort to secure a line of credit. The union requested an audit premised on the company’s alleged assertion of inability to pay, but Wayron denied making any such assertion. The Board held that “magic words” are not required to trigger a union’s ability to audit based on a claim of inability to pay, and that the entire factual picture demonstrated that the company was asserting such a claim. Wayron, LLC.

The Director of NLRB Region 29 has determined that lead engineers seeking representation by the International Union of Operating Engineers are prevented from unionizing because they meet the NLRA’s supervisory criteria. The lead engineers work for a Covanta Energy power plant in Huntington, N.Y., where they have the authority to hire, fire, and promote employees, could assign work, and were the highest-ranking personnel at the plant during certain shifts. Covanta Huntington LLC and Int’l Union of Operating Engineers, Local 30, AFL-CIO.

Equinox Holdings, Inc. lost its challenge to a union election overseen in part by a former employee fired for brandishing an airsoft gun just days before the election. The employee allegedly held up an airsoft gun in a break room and told co-workers that he had it “in case any f*****s want to get crazy.” In rejecting the challenge, the NLRB held that there was no evidence that the former employee’s conduct prejudiced the vote or that he engaged in any misconduct during the election. Equinox Holdings Inc. and Service Employees International Union, Local 87.

The Sixth Circuit Court of Appeals overruled and vacated an NLRB decision finding that Kellogg Co. engaged in an unfair labor practice by locking out workers during ongoing negotiations with their union. Kellogg and the union had reached impasse in negotiations in which Kellogg sought to add “casual” workers that did not have the same benefits as regular workers. The union argued that this would change a master agreement by modifying the terms of a different agreement, which would have violated the NLRA. However, the court found that the agreement would not have affected the master agreement, and thus the union’s refusal to bargain was unjustified. Kellogg Co. v. NLRB.

Although the United Steelworkers lost an election during a campaign to organize employees at a Novelis Corp. plant in Oswego, N.Y., the NLRB affirmed an Administrative Law Judge’s (ALJ) ruling that the company must nevertheless bargain with the union. The ALJ found that the company had committed numerous unfair labor practices during the election, including, among other things, threatening employees that the plant may close, that it could lose customers, and that it would need to reduce wages if the organization election succeeded.Novelis Corp. and United Steel et al.

The NLRB General Counsel issued a memorandum concluding that Pacific 9 Transportation Inc. misclassified drivers as independent contractors in an effort to deny them the benefits that inure to them as statutory employees under the NLRA. Pac 9 and the Teamsters have been engaged in a long-running battle regarding the drivers’ appropriate classification, and, despite settling an unfair labor practices charge alleging misclassification, the company continued to inform drivers that they were not employees. Pac 9 Transp., Inc.

The NLRB ordered that Volkswagen Group of America must bargain with the UAW local that won an organizing election at the automaker’s Chattanooga, Tenn., plant. The company had argued that the bargaining unit comprised of skilled-trades workers was inappropriate because it should have included maintenance worker and production line employees. Volkswagen Grp. Of Am. Inc.

An NLRB ALJ found that Omaha, Neb.-based Anderson Excavating Company violated the NLRA by withdrawing recognition from Local 571 of the International Union of Operating Engineers. Saying that it had not signed a collective bargaining agreement with the union since 2004, the company refused to make required payments to the union’s funds for pensions, training, and health and welfare, and also refused to remit union dues. However, the ALJ found that the company had adopted the terms of a subsequent agreement through its conduct because it complied with its terms despite never signing it. Anderson Excavating Co.

The NLRB rejected a labor arbitrator’s finding that an employee on a performance improvement plan was not entitled to union representation. A telephone technician employed by Verizon was on a performance plan when his manager called him in to discuss some jobs he performed the previous day. The employee requested that a union representative be present, but the manager refused and later suspended the employee for refusing to answer her questions. The arbitrator found that the employee was not entitled to representation because he had no reasonable concern that the meeting might lead to discipline. The Board, however, disagreed, finding that the manager’s conduct and the preexisting improvement plan required a finding that the employee reasonably feared disciplinary action might result from the meeting. Verizon Calif., Inc.

In a case involving a dispute between FedEx Freight and the Teamsters, the Third Circuit Court of Appeals held that the NLRB appropriately applied its Specialty Healthcare standard for determining bargaining units in a representation election. In 2014, the Teamsters filed a petition seeking an election for a unit of road and city drivers at a terminal in New Jersey. FedEx argued that the unit was incorrectly defined because it did not include dock workers at the same terminal. The court held that a proposed unit is appropriate where the Board finds that employees constitute a readily identifiable group with a community of interest. That finding can be overcome only if the employer shows that another group with an “overwhelming community of interest” with the workers in the proposed unit are nonetheless excluded from the unit. The court determined that FedEx failed to meet that burden. NLRB v. FedEx Freight, Inc.

The NLRB affirmed an ALJ finding that the Michigan State Employees Association violated the NLRA in multiple ways after a new president took over. The ALJ found that the union implemented new work rules and eliminated certain reimbursements without providing notice, refused to provide information about retiree and insurance benefits, and took unlawful action against five employees—one of whom was fired because of her membership in a staff bargaining unit. Mich. State Employees Ass’n and Central Office Staff Ass’n.

According to the NLRB, Minteq International Inc., a company that patches steel furnaces, violated the NLRA by requiring employees to sign non-compete agreements without first giving the employees’ union the ability to bargain over the agreements. The Board held that employee work rules such as non-compete agreements are mandatory subjects of bargaining. It also held that the non-compete agreement violated the NLRA by prohibiting former employees from soliciting or encouraging customers to alter their relationships with the company. Minteq Int’l, Inc.

The D.C. Circuit Court of Appeals ruled that a New Jersey nursing home violated the NLRA when it excluded certain employees from a health care benefits in advance of their vote for union representation. The court enforced an NLRB order that Care One at Madison Avenue LLC discriminated against the employees when it reversed cuts to a health care plan for some employees, but not the employees who were eligible to vote in the upcoming election. The court also upheld the Board’s finding that the Care One illegally threatened employees that their employment could be at risk if they elected a union and a strike ensued. One Care at Madison Ave., LLC v. NLRB.

The D.C. Circuit also affirmed an NLRB ruling that an Alamo Rent-A-Car facility owned by Enterprise Leasing violated the NLRA when it unlawfully told employees that it was eliminating short-term disability benefits based on their union membership just before an employee solicited by the company circulated a petition to decertify the Teamsters Local representing the employees. The court declined to consider the company’s assertion that the Board’s remedy, which required it to reimburse union dues from its own funds after it refused to honor the union checkoff authorizations, was unlawfully punitive, finding that the company had failed to raise the argument before the Board. Enterprise Leasing Co. of Fl. v. NLRB.

A West Virginia state court enjoined enforcement of the state’s right-to-work law. The West Virginia AFL-CIO claimed that the law violates the state’s constitutional prohibition against the taking of property without due process. The union argued that free-riders who drop out of the union, but still enjoy its benefits and protections, are taking from dues-paying members. The court has not yet issued a written opinion. W. Va. AFL-CIO v. Tomblin.

The Seventh Circuit Court of Appeals enforced an NLRB order finding that Amglo Kemlite Laboratories Inc., a maker of lamps and related components based in Illinois, retaliated against striking employees by transferring work to Mexico. When Amglo’s president visited the company’s Illinois facility in 2011, she encountered 50 workers striking over low wages. The plant manager subsequently told the employees that they could quit if they did not like their wages. When employees offered to return to work, the company president told them that she did not know when they could do so since the company was transferring some work to Mexico “because of the situation.” Although 22 employees were temporarily recalled to work, they were later told that their jobs were no longer available because work had transferred to Mexico. Amglo Kemlite Labs. Inc. v. NLRB.

Rejecting arguments that two charter schools in New York and Pennsylvania are political subdivisions of their states, the NLRB has asserted jurisdiction over two disputes involving employees at the schools. Although the Board’s decisions did not reflect a new bright-line rule regarding jurisdiction over charter schools, it reflects growing organizing efforts among charter school employees. Pa. Virtual Charter Sch.; Hyde Leadership Charter Sch.-Brooklyn.

In a dispute involving class action waivers in an arbitration agreement, a U.S. District Court in North Carolina held that the NLRB can subpoena entertainer agreements signed by exotic dancers employed by Raleigh Restaurant Concepts. The underlying actions involve an employee misclassification class action and unfair labor practice charge that an arbitration agreement and class action waiver were unenforceable under the NLRA. The company challenged the NLRB’s subpoena, but the court found that the documents sought fell within the Board’s right to seek reasonably relevant information. NLRB v. Raleigh Rest. Concepts, Inc.

The NLRB found that the United States Postal Service violated the NLRA after it disciplined an employee and union steward for berating a supervisor during a meeting. The meeting concerned employee grievances, and the company argued that the employee’s loud, aggressive, and confrontational conduct during the meeting lost protection under the NLRA. The Board disagreed, holding that the employee’s conduct was what might be expected during a heated discussion of employee grievances. USPS & Am. Postal Workers Union, AFL-CIO, Portland Or. Area Local 128.

The Sixth Circuit Court of Appeals enforced an NLRB order requiring the reinstatement of workers the Board found had been illegally terminated. Striking employees of a building supply company received a letter that they had been “terminated,” but the company claimed that it was merely replacing the workers pursuant to its right to do so under the NLRA. The Board ordered the workers reinstated with back pay. Tri-State Wholesale Bldg. Supplies v. NLRB.

A Washington state hospital violated the NLRA when it tried to prevent off-duty workers from picketing on hospital property. The NLRB held that Capital Medical Center could not impede the picketing because the employees were not disrupting the hospital’s operations. The dispute arose out of contentious bargaining negotiations. Capital Med. Ctr. and UFCW Local 21.

The NLRB voted 3-1 to revise its formula for calculating back pay for unlawfully terminated employees. The Board previously excluded a terminated employee’s interim employment and job search expenses from the calculation, and deducted them as offsets against gross back pay. Under the new formulation, employees will be compensated for incurring such costs. King Soopers Inc. and Wendy Geaslin.

Student assistants at Columbia University seeking representation by the Graduate Workers of Columbia-GWC, UAW, won a victory before the NLRB. Determining the assistants right to organize, the Board held that student assistants at private schools are employees under the NLRA. The Board’s decision is the latest in a series of flip-flopping decisions. In 2000, the Board held that graduate teaching and research assistants were employees under the NLRA, but a 2004 decision reversed that position on the basis that the students’ relationship to the school was primarily educational. The Board has now reaffirmed its 2000 decision. Graduate Workers of Columbia-GWC, UAW v. Trustees of Columbia Univ. in the City of N.Y.

An NLRB ALJ recommended the dismissal of a complaint filed by NewsGuild New York against Time Inc. NewsGuild claimed that Time violated the NLRA when it declared impasse and imposed its last, best, and final offer after negotiations faltered in November 2014, but the ALJ disagreed that Time’s conduct was unlawful. Among other charges, NewsGuild also claimed that Time unlawfully modified the terms of an expired contract, reaped $10 million in taxpayer subsidies while outsourcing jobs overseas, and bypassed the union to negotiate separation agreements directly with some employees. Time Inc. and The NewsGuild of N.Y., CWA, Local 31003.

The Seventh Circuit found in favor of a supermarket receiving clerk who was fired for taking a bag of birdseed beyond the store’s last checkout point. The clerk’s claim was that her union, Food & Commercial Workers Local 881, failed to arbitrate her discharge in violation of the NLRA. The court agreed, and also held that the union failed to abide by the collective bargaining agreements requirement that it complete a three-step grievance process. Rupcich v. Food & Comm’l Workers Local 881.

An NLRB ALJ held that staffing agency E.A. Renfroe and Co. Inc. violated the NLRA by maintaining a mandatory employee arbitration provision that included a class action waiver and by terminating an employee who refused to sign it. Renfroe employees are not unionized, but the ALJ held that an employee engaged in protected activity under the NLRA when she refused to sign the agreement. The ALJ recommended reinstatement with back pay.E.A. Renfroe & Co. Inc.

The NLRB determined that Chipotle Mexican Grill’s social media policy violated the NLRA because it prohibits employees from spreading inaccurate information. The Board found that Chipotle had fired an employee for circulating a petition about the company’s break policy, but also held that the employee’s tweets to customers about cheap labor at the company were not protected by the NLRA. The Board ordered the employee reinstated with back pay. Chipotle Services LLC and Penn. Organizing Committee.

A dancer in the Las Vegas show Vegas! The Show must be offered reinstatement according to an NLRB ruling. The dancer filed an unfair labor practices charge after her contract was not renewed days after she complained to the show’s producer about working conditions. The Board also ordered the show to remove a provision from its contract with dancers that required them to acknowledge the show was nonunion. David Saxe Productions, LLC.

The D.C. Circuit upheld the NLRB’s position that its “Health Care Rule” is inapplicable where self-determination elections are directed to adding employees to pre-existing bargaining units. The Health Care Rule established eight bargaining units for acute care hospitals, and restricted the creation of additional units because of concerns over disruptions to patient care. However, the D.C. Circuit held that self-determination elections by definition do not involve increasing the number of bargaining units. NLRB v. Rush Univ. Med. Ctr.

The NLRB held that the U.S. Supreme Court’s 1979 decision exempting religious schools from the NLRA does not apply to faculty who teach secular topics. The decision concerned adjunct faculty at Catholic universities in Washington and Illinois, and may clear the way for teachers of secular topic areas at religious schools to unionize while their religion and theology colleagues are blocked from doing so. St. Xavier Univ. & St. Xavier Univ. Adjunct Faculty Org., IEA-NEA; Seattle Univ. & SEIU, Local 925.

Relying on its Browning-Ferris decision, the NLRB held that Green JobWorks, a staffing agency, and Retro Environmental, an asbestos removal company, were joint employers. The Board found that Green JobWorks set pay and benefits for the employees, while Retro made the “core staffing and operational decisions that defined all employees’ work days.” Thus, the Board held that the two companies codetermined the essential terms and conditions of employment. Retro Envir. Inc./Green JobWorks LLC and Construction and Master Laborers’ Local 11.

An employee for Freeman Decorating in Utah lost a challenge to his union’s policy prohibiting members from being referred for work until they paid no-show fines. The union, which represents theatrical stage workers, had a policy requiring members to pay increasing fines for tardiness or for missing a job. The Board upheld the policy on the basis that it was designed to ensure effective operations by enforcing attendance and had not been applied unfairly. Int’l Alliance of Theatrical Stage Empls., Moving Picture Techs., & Allied Crafts of the U.S., its Territories, and Canada.