A jury awarded a Houston-based janitorial services company $5.3 million in damages for lost profits resulting from customer cancellations after an SEIU local accused the company of labor violations. The disparaging statements included allegations that the company failed to pay employees for all hours worked, and had threatened to fire those involved with the union. The jury found the SEIU local either knew the statements were false or acted with reckless disregard as to whether the statements were false. Evidence included union emails that mentioned using attacking the business as a tactic to force the company’s hand in recognizing the union.Professional Janitorial Service of Houston v. Service Employees International Union Local 5.
An NLRB administrative law judge (ALJ) ruled that an arbitration agreement requiring workers to individually arbitrate employment disputes violated federal labor law, even though the agreement had an opt-out provision. The ALJ also determined that MasTec violated the National Labor Relations Act (NLRA) by using the policy to compel arbitration after the workers had filed collective action lawsuits over wage violations. The decision is the latest in a series by the Board invalidating similar arbitration agreements. The NLRB’s precedential decision in D.R. Horton has been overturned by the Fifth Circuit, but the decision stands as Board precedent for now.MasTec Inc. and Jose Luis Sanchez Cordero; MasTec Inc. and Moishe Ben Levison.
The NLRB held that an employer must provide notice and an opportunity to bargain before imposing serious discipline on workers represented by a newly certified or recognized union that has not yet negotiated a labor contract. In its decision, the panel agreed with the Board’s reasoning in Alan Ritchey, Inc. (although the decision was later invalidated by the U.S. Supreme Court because of the appropriateness of the appointments to the Board). The Board reaffirmed Alan Ritchey, Inc.’s determination that an employer must not act unilaterally on issues of discipline under labor agreements. Total Sec. Mgmt. Ill. 1.
The NLRB ruled that an Illinois staffing agency violated federal labor law when it terminated an employee who discussed the company’s disciplinary procedures with a co-worker. The Board ordered the company to offer reinstatement to the employee who was fired after discussing discipline she received regarding the company’s dress code. Though there was no union involved in the action, the NLRB noted that the NLRA protects activity by all workers, unionized or otherwise. UniQue Personnel Consultants Inc.
The NLRB held that workers who engaged in a relatively small, brief, peaceful, and confined work stoppage at a Wal-Mart store were unlawfully disciplined for their conduct. Six employees received disciplinary action after stopping working for about 30 minutes before the store opened to the public at a location in Richmond, Calif. The protesters assembled in the customer service area and carried a banner, which the NLRB ruled was protected activity. Wal-Mart Stores, Inc.
The Board found that an employee dress code that banned “confrontational” clothing in violation of federal labor law. On remand from the U.S. Court of Appeals for the D.C. Circuit, the NLRB found that Medco violated the NLRA when it ordered an employee at its facility to remove a t-shirt that spoke out against company policies. The NLRB reasoned that Medco failed to establish that the policy applied in this context because there was no “public image” associated with the internal work policy that was the subject of the t-shirt. Medco Heal Sols. of Las Vegas, Inc.
A federal judge in Los Angeles has ordered a local hospital to halt alleged violations of its nurses’ collective bargaining rights. The court granted the NLRB’s motion for a temporary injunction against the Barstow Community Hospital and ordered the hospital to bargain in with the California Nurses Association. This is the second similar injunction granted against the hospital involving an allegation of bad faith bargaining and various unfair labor practices. Rubin v. Hosp. of Barstow, Inc.
An NLRB ALJ held that Facebook posts made by a union member that were critical of the local’s dealings with a politician in New York were protected by federal labor law. The ALJ found that the union violated the NLRA by removing the man from its job placement services for a month after he made the comments on social media. The union was ordered to compensate the member for earnings or benefits he lost as a result of being removed from the job placement list, as well as expenses he may have incurred as a result. Laborers’ International Union of North America, Local Union No. 19 and Frank S. Mantell.
The NLRB found that a building owner’s informal agreement to recognize a union and set basic terms for employee wages and benefits did not bar a rival union from formally seeking the right to represent the workers. The Board determined that it would not treat a document as a collective bargaining agreement where it failed to provide stability and guidance in a labor-management relationship. Red Apple 81 Fleet Place Dev. LLC.
The National Federation of Independent Businesses filed suit in federal court in the Northern District of Texas claiming that a 2013 OSHA letter of interpretation, which granted “walkaround rights” to nonemployee union representatives, represents a significant change that should have been done through a formal rulemaking procedure. Prior to the 2013 letter, only employees and persons with specialized safety expertise could accompany OSHA inspectors during walkarounds. The 2013 letter effectively lowers that bar to allow any person who “will make a positive contribution” to participate in the inspection. Nat'l Fed'n of Indep. Bus. v. Dougherty. And, in a related challenge to OSHA’s 2013 letter of interpretation regarding “walkarounds” on employer premises, Nissan has challenged an OSHA effort to have union advocates accompany an inspector while checking its manufacturing plant. The suit, in federal court in Mississippi, challenges whether the automaker must allow two union representatives to be with an OSHA compliance officer, when neither union representative serves on the plant safety committee. In re Establishment of Nissan N. Am.
The Third Circuit remanded a case to the district court for reconsideration where a builders and contractors association sued Jersey City, N.J. over an ordinance that requires developers seeking tax abatements to enter into project labor agreements. The Third Circuit found the district court was wrong in calling the city a “market participant” when it enforced the ordinance. The circuit court ruled that the market participant exception to preemption under the NLRA did not apply, because Jersey City has no proprietary interest in tax-abated projects.Associated Builders & Contractors Inc. N.J. Chapter v. City of Jersey City.
An NLRB ALJ ruled that Kroger Co. unlawfully banned union representatives from distributing petitions in a store parking lot in Virginia. The grocery chain had allowed community organization such as the Lions Club and Salvation Army to solicit donations on store property, but it banned the UFCW from soliciting support for a campaign related to the store’s closure. The ALJ ruled that this was a discriminatory application of the store’s no-solicitation policy. Kroger Mid-Atlantic LP.
The Court of Appeals for the D.C. Circuit ruled that the NLRB properly held that DirecTV and an installation contractor unlawfully fired 26 technicians who protested the company’s actions during a labor dispute. The court reasoned that an employee may speak out against labor conditions even if that commentary is unflattering or unfair to the employer. DirecTV, Inc. v. NLRB.
A West Virginia judge ordered two hospitals owned by Community Health Systems to cease bargaining with the National Nurses United. The decision comes as the NLRB is considering whether CHS committed various unfair labor practices at five other CHS locations in addition to those in West Virginia. The union had hoped to continue bargaining while the unfair labor practice charges were addressed, a procedure available under Section 10(j) of the NLRA, but the judge declined to invoke the rule, effectively halting bargaining until the charges are resolved.Henderson v. Bluefield Hosp. Co. LLC.
A Wisconsin district court dismissed a union challenge to Wisconsin’s right to work law, which bars labor contracts from requiring private-sector workers to pay union dues. Relying on precedent from the Seventh Circuit, the court rejected the union’s argument that the law violated the Fifth Amendment’s ban on taking private property for public use without sufficient compensation. International Union of Operating Engineers Local 139 et al. v. Schimel et al.
The NLRB denied review of a Regional Director’s determination that the contingent faculty at Seattle University could organize for bargaining The SEIU won representation of a group of non-tenured faculty at Seattle University in 2014. The university had contested the election, claiming that as a religiously affiliated institution, it was exempt from NLRB jurisdiction. The panel applied the reasoning adopted by the Board in Pacific Lutheran University, which held that faculty at religious institutions that do not perform a religious function my unionize.Seattle University.