A split NLRB determined that an allegedly dishonest employee may be entitled to make­whole relief if his termination was based on the results of an unlawful interview. According to DuPont, after an employee was dishonest during an interview, they terminated him for having a history of dishonesty. The employee, however, requested and was denied union presence at the interview. The NLRB determined that Dupont unlawfully failed to provide the employee with representation at the interview. Further, if the employer would not have made the decision absent the conduct from the illegal interview, then the termination also constituted an unfair labor practice. The decision was remanded to an administrative law judge (ALJ) to determine whether the reason for termination was the interview conduct. E.I. DuPont de Nemours & Co.

The NLRB rejected an ALJ’s ruling that American Electric Power (AEP) committed unfair labor practices by failing to give notice and an opportunity for bargaining before unilaterally eliminating a retiree medical benefit for its employees. The NLRB reasoned that AEP arguably had a right to change the benefit unilaterally, and AEP’s past practice was consistent with this line of reasoning. The Board did not decide which contract interpretation was more plausible, but dismissed the action because AEP’s position was reasonable and the General Counsel’s office did not meet its burden of proof. Am. Elec. Power.

The U.S. Court of Appeals for the Sixth Circuit held that nurses did not have standing to pursue a duty of a fair representation claim against a union for conduct, which occurred before the union was the bargaining representative. The nurses, employed at a hospital in Ohio, alleged that before the National Nurses Organizing Committee was designated as their representative, it reached a secret agreement with the hospital. The Sixth Circuit explained that the complaint only alleged a “future conjectural injury” that does not rise to the level of imminent harm necessary to find standing. The court further determined that even though the concealment of the agreement continued after the union had become the representative, concealment is not a separate harm because there was no injury associated with the concealment. Keener v. Nat’l Nurses Org. Comm.

A federal judge for the Eastern District of California certified a class of 34,000 nonunion California civil servants challenging the SEIU’s practice of deducting money for political activities from employees’ wages unless they annually opt out. The workers claim that being required to annually opt out of these automatic withdrawals, creates an unconstitutional default option. The named plaintiffs claim the opt­out information is confusing and the process itself is cumbersome. The suit seeks an injunction against the union’s current opt­out procedures and repayment of past charges for political expenses. Kourosh Kenneth Hamidi, et al. v. SEIU Local 1000 et al.

The U.S. Court of Appeals for the Eighth Circuit held that a federal district court abused its discretion by issuing a preliminary injunction that ordered an Arkansas bakery to recognize and undergo bargaining negotiations with the Bakery, Confectionery, Tobacco Workers and Grain Millers Local 11 (BCTGM). The court refused to issue the preliminary injunction on the basis that an injunction was not needed in order to preserve effectiveness of the ordinary adjudicatory process. McKinney v. Southern Bakeries, LLC.

The NLRB affirmed an ALJ’s ruling, which held that a union official’s angry comments in response to an employer’s plan to change a service recognition policy was not a protest, but a request for bargaining. The NLRB found the union official’s comments, which consisted of exclaiming “no you don’t!” and threatening to both visit the company’s headquarters and file a unfair labor practice charge with the NLRB, as sufficiently specific enough to be reasonably understood by the company as a bargaining request. Ohio Edison Co.

The U.S. Court of Appeals for the Ninth Circuit rejected an Alaskan container ship operator’s claim that the International Longshore and Warehouse Union (ILWU) violated Section 303 of the NLRA in its attempt to enforce an arbitrator’s award of cargo handling work to the ILWU’s members. The Ninth Circuit found that the container ship operator could not claim damages under Section 303, because there was no evidence of ILWU members engaging in unlawful misconduct. Am. President Lines, Ltd. v. Longshore & Warehouse Union.

An Illinois appeals court ruled that a 2013 amendment to the Illinois Public Labor Relations Act, which gives the Governor the opportunity to exclude up to 3,580 government positions from collective bargaining, is constitutional. The amendment, which the court believed furthers the state’s legitimate interest in improving the efficiency of state government, has been used by the Governor to remove state government managers from their collective bargaining units. AFSCME Council 31 v. State of Illinois, et al.

An NLRB ALJ ruled that High Flying Foods, an airport restaurant business that suspended and terminated a host of employees during its negotiations for its first union contract, did not have a duty to bargain about discretionary discipline under the NLRA. The decision follows the U.S. Supreme Court invalidation of Alan Ritchey – an NLRB decision which held that a newly selected union must be given notice and the ability to bargain prior to the employer taking major disciplinary actions against union employees. While the ALJ found the Alan Ritchey case compelling, he refused to apply it since the NLRB has yet to reaffirm the case. High Flying Foods.

A federal judge for the Northern District of Illinois dismissed, for lack of both subject matter jurisdiction and standing, Illinois Governor Bruce Rauner’s (R) complaint seeking to validate his executive order implementing a public sector right­to­work proposal. However, the judge did allow three state government workers to advance with their state fair­share action against some two dozen unions. Rauner v. State, County and Mun. Emps., Council 31.

The NLRB Regional Director for Fort Worth, Texas, refused to issue a complaint against Sherwin Alumina LLC for unfair labor practices. The United Steelworkers (UW) filed the complaint against Sherwin Alumina LLC after the company initiated a lockout of 450 UW workers last fall.

An NLRB ALJ held that Crozer Chester Medical Center in Upland, Pa. violated Section 8(a)(1) of the NLRA when it forbid its off­duty employees from picketing and leafleting on company property for the Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP). The ALJ dismissed the hospital’s argument that the picketing on hospital property was a disruption to health care operations and a disturbance to patients as speculative. Moreover, the ALJ ruled that the hospital’s refusal to negotiate over accommodations pertaining to the hospital’s confidentiality of staffing data policy violated Sections 8(a)(1) and 8(a)(5) of the NLRA. Lastly, the ALJ found that the hospital violated the NLRA when it refused to produce, in a timely manner, the documents that related to the hospital’s contract with a nurse staffing agency hired to replace PASNAP workers during their strike. The ALJ recommended that the NLRB order the hospital to discontinue its practice of banning off­duty employees from picketing, bargain in good faith over the confidentiality issues, and provide the PASNAP with the requested documents related to the hospital’s contract with the nurse staffing agency. Crozer Chester Med. Ctr.

An NLRB ALJ found that retailer Macy’s Inc.’s employee handbook, which included wide­ranging policies on confidential information, intellectual property, personal data, and providing information to government agencies, violated federal labor law, as it hampered employees from engaging in concerted activity for their mutual aid or protection. Macy’s pointed to its savings clause, which reiterated that nothing in the code or in related policies restricted employees from exercising rights under federal labor law. However, the ALJ found this disclaimer to be too generic to effectively refute the company’s illegal rules. The ALJ ordered Macy’s to revise and redistribute its employee handbook nationwide, and to display NLRB remedial notices in all of its U.S. facilities. Macy’s, Inc.

The NLRB held that Freshii Development LLP is not a joint employer with Nutritionality Inc., a franchisee that allegedly terminated employees for their participation in union activity. The NLRB reviewed the case under two different theories of joint employer liability, and found both theories supported its holding. The first, and more commonly applied standard classifies separate entities as joint employers when they “share or codetermine those matters governing the essential terms and conditions of employment.” Since Freshii’s operational controls did not impose mandatory employee policies or procedures of any kind, the NLRB concluded that the two companies were not joint employers under existing law. The second standard, which has yet to be adopted by the NLRB, but has been proposed by the NLRB general counsel, finds joint employer status where the “industrial realities” require involvement of the entity for meaningful bargaining to occur. The NLRB concluded that because Freshii does not control or restrict the employee’s fundamental terms and conditions of employment, even under the general counsel’s proposed standard, the two entities would not be classified as joint employers. Nutritionality, Inc.

The NLRB reversed an ALJ’s opinion and ruled that Kellogg Co. violated Sections 8(1)(a) and 8(a)(5) of the NLRA when it required that the BCTGM accept midterm revisions to a master agreement, and locked out more than 200 employees. The Board determined that because Kellogg’s bargaining was improper, the lockout was unlawful discrimination. The NLRB ordered Kellogg to continue bargaining with the union, to reinstate any locked­out workers who have yet to return to work, and to make the workers whole by compensating them for any benefits or pay that they may have lost during the nine­month lockout. Kellogg Co.

A federal judge for the District of Columbia ruled that the Department of Labor’s (DOL) Notification of Employee Rights Under Federal Labor Laws rule did not violate the First Amendment rights of covered employers, nor was the rule preempted by the NLRA. The rule followed President Barack Obama’s Executive Order 13,496, which tasks the DOL with implementing a rule that requires federal contracts and subcontractors to post a notice that informs workers of their NLRA rights. Nat’l Ass’n of Mfrs. v. Perez.

The U.S. Court of Appeals for the District of Columbia affirmed an NLRB order requiring a California hospital that acted in bad faith to reimburse the union for its negotiating expenses. The Board held that the hospital had violated Section 8(a)(6) of the NLRA by acting in an “obstinate and pugnacious manner” and by placing “a series of roadblocks designed to thwart and delay bargaining.” The court reasoned that substantial evidence in the record, including the hospital’s refusal to provide the union with pertinent and truthful information, and its insistence on delaying the negotiating process, supported the NLRB’s choice of remedy. The court further denied the hospital’s motion to remand the case to the NLRB for reconsideration of the award. Fallbrook Hosp. Corp. v. NLRB.

The NMB refused to allow IBT to hold a runoff election after the union failed to garner the majority of Allegiant Air flight dispatchers necessary to certify union representation. IBT argued that the Railway Labor Act (RLA) compels a run­off election when the ballot contains three options, yet none receive a majority. However, the NMB maintained that all three options must receive votes in order for a run­off to be justified. Since the “strawman” option that appeared on the ballot did not receive any votes, the NMB reasoned against a run­off election. Employees of Allegiant Air.

An NLRB ALJ ruled that a masonry contractor committed unfair labor practices by refusing to hire applicants and terminating an employee based on union affiliation. Two bricklayers unions chose the Jeff MacTaggart Masonry LLC company for “salting” or securing jobs for union organizers for the purpose of organizing in early 2014. Three union organizers applied for employment in July 2014, mentioning that they intended to organize the workforce on their applications. In response to this and other pro­union activity, the company changed its policies and refused to hire the applicants. The ALJ found that the company was hiring and the applicants were qualified. Thus, there was “no question that anti­union animus was the principal reason they were not hired.” Jeff MacTaggart Masonry, LLC d/b/a JM2.

The NLRB Division of Advice issued a memorandum finding no basis for issuing a complaint against Au Bon Pain for advising employees against unionization because it would, among other things, disturb their “direct line to management.” UNITE HERE Local 274 filed an unfair labor practice charge against Au Bon Pain, claiming that the employer violated Section 9(a) of the NLRA, which states that all union­represented employees must be able to voice their grievances directly to their employer. The memorandum explained that these employer statements were permitted under the NLRA since they did not accompany threats to employees, that the employer’s statements were “ambiguous,” and did not necessary imply that employees would be deprived of all direct access to the employer if they chose union representation. Au Bon Pain at Phila. Airport.

The NMB ruled that the 5,500 electronic ticketing support workers at Southwest Airlines belong in the passenger service employees group and are covered by IAM’s collective bargaining agreement with Southwest. The NMB maintained that because the duties performed by the ticketing support workers are done with the “purpose of directly assisting the flying public,” these workers may be classified as passenger service employees.

The NLRB concluded that a vending machine company violated federal labor law when it fired a vending machine route driver for discussing a “help wanted” ad posted by the employer with a co­worker. The Board held that an employee’s discussion of job security with a coworker was “inherently concerted,” especially where the workforce is small. The Board majority found the conversation involved a matter of mutual and obvious concern to employees, though there was no discussion of group activity. Sabo, Inc.

A federal judge for the District of Nevada issued a preliminary injunction preventing a threatened strike by Teamsters­represented Allegiant Airline pilots. The judge rejected the Teamsters’ argument that Allegiant Airlines had violated the Railway Labor Act (RLA), which requires both parties to maintain status quo conditions while negotiations are in progress. The court concluded that Allegiant Airline’s imperfect modification of its preferential bidding system for flying schedules did not rise to the level of status quo violations. Allegiant Air, LLC v. Teamsters.

The NLRB set aside the results of a Maryland nursing home representation election, where the employer announced wage hikes before geriatric nursing assistants (GNAs) rejected representation by 1199SEIU United Healthcare Workers East. During the “critical period” between the filing of the union’s petition and the election, the nursing home disseminated letters to all GNAs with details about their wage increases and in some cases sent checks reflecting the increase. According to the NLRB, this constituted “objectionable conduct” on the part of the employer during the critical election period. The NLRB ordered a new representation election. Manor Care­ Ruxton, MD LLC.

The NLRB repudiated an ALJ’s rejection of the NLRB’s D.R. Horton decision, which held that employers may not require their workers, as condition of employment, to waive their right to bring class or collective action claims in any forum. The ALJ cited to the U.S. Supreme Court’s American Express decision, which concluded that a class waiver was enforceable in a case against a company, regardless of the fact that plaintiffs could prove that the cost of a successful claim in individual arbitration would surpass any likely recovery from the claim. However, the NLRB maintained that the D.R. Horton decision is consistent with Supreme Court jurisprudence under the Federal Arbitration Act, since it permits enforcement of agreements to arbitrate federal statutory claims, but protects a party from being required to “forgo the substantive rights afforded by the statute.” Chesapeake Energy Corp. et al.

The NLRB ruled 2­1 that an Oregon grocery store violated the NLRA when a store manager prevented union agents from interacting with employees in the store. The Board held that this practice went against the collective bargaining agreement and past practice. Fred Meyer Stores, Inc.

A panel of federal judges for the U.S. Court of Appeals for the Third Circuit held that the NLRB did not meet its burden in proving that a nursing home discriminated against employees involved in raising support for a union before an upcoming election. The NLRB adopted an NLRB ALJ’s opinion, finding that the employer excluded the employees from health plan improvements because of their pro­union activities, unlawfully interrogated an employee, and appeared to be monitoring employees during the campaign. The court upheld the rulings related to the interrogation and monitoring of employees, but rejected the discrimination claim stating that the NLRB made no findings related to the purpose of the terminations, thus there could be no finding of discrimination. 800 River Rd. Operating Co. v. NLRB.

In a split decision, the NLRB ruled that simply revising unlawful handbook guidelines is not enough to avoid unfair labor practice findings. The Board had previously found Boch Imports 2010 employee handbook contained unlawful social media and dress code policies. The auto dealer subsequently updated its social media policy in 2013. The NLRB ruled that by not repudiating its conduct, by notifying employees of the unlawful policy and assuring them that further intrusions upon their rights under the NLRA would not occur, Boch was in continuous violation of the NLRA. The dissenting Board member urged that revisions of such unlawful policies should be encouraged and not penalized. Boch Imports, Inc.

The SEIU filed a petition with the Federal Trade Commission (FTC), requesting that the agency investigate the franchise industry in order to determine the pervasiveness of abusive and predatory practices by franchisors towards franchisees. Since franchise industry rules are mostly determined at the state level, the FTC’s oversight primarily centers around file disclosure documents, which are required of franchises in order to aid franchisees to make informed buy in decisions. In its petition, the SEIU maintains that not enough financial information is provided to prospective franchisees. Moreover, the SEIU claims that franchisees lack power in their relationships with the franchisors. For example, the SEIU’s research found that while franchisors reserve the right to terminate a franchisee’s business for violating the operating manual, franchisors themselves routinely reserve the right to change the operating manual unilaterally.