The U.S. Supreme Court held that the 1998 Federal Vacancies Reform Act requires nearly all individuals serving in an acting capacity to step aside while their permanent nomination is being considered. The ruling will require presidents to remove selected individuals from a leadership position once the White House sends that individual’s nomination to the Senate, or designate a different person as an acting official while seeking Senate confirmation of another. NLRB v. SW General, Inc. See our client briefing Supreme Court Invalidates NLRB Acting GC’s Tenure.     

The U.S. Court of Appeals for the District of Columbia Circuit held that FedEx single-route drivers are independent contractors, declining to defer to the NLRB’s 2014 employment classification standard. Down the road, the decision could have implications on the direction that a Republican-controlled Board takes in determining employee/contractor classification issues under federal labor law. FedEx Home Delivery v. NLRB.     

The full Sixth Circuit declined to revisit a November panel ruling that a Kentucky county’s right-to-work ordinance violates federal labor law. The Kentucky ordinance would have made it a misdemeanor to force NLRA-covered employees to join a union or pay dues to a union as a condition of employment. After a district court ruled that the NLRA bars local governments from enacting right-to-work laws, the Sixth Circuit panel reversed, finding that the Act, which permits “states” to pass such laws, likewise permits political subdivisions of the state to do the same. United Automobile, Aerospace and Agricultural Implement Workers of America et al. v. Hardin County, Kentucky et al.     

A unanimous three-judge panel for the D.C. Circuit overturned a determination by the NLRB that it has jurisdiction over a union election among airport baggage system workers in Portland, Ore. The court held the NLRB ignored precedent by showing that the matter is subject to the Railway Labor Act (RLA), which is administered by the National Mediation Board. NLRB v. ABM Onsite Services - West Inc.     

The D.C. Circuit reversed in part an NLRB order that required a California restaurant to bargain with UNITE HERE Local 2850. Although the employer violated federal law by withdrawing its recognition of a union with majority support among employees, the court found that the NLRB abused its discretion by ordering the employer to bargain. Before the employer withdrew recognition, the union had failed to reveal that six employees had revoked their signatures on a petition, showing that 29 of the 54 employees disfavored union representation. The court reasoned that the NLRB order would have rewarded the union’s “gamesmanship.” Scomas of Sausalito LLC v. NLRB.     

A divided D.C. Circuit Court panel held that the NLRB erred in ruling that a group of grocery clerks could not revoke the deduction of dues from their paychecks during a gap in their union contract. The circuit court ruled that union-represented workers must have the opportunity to stop paying dues through a payroll deduction system when a collective bargaining agreement is about to expire. The grocery clerks worked for a between labor agreements. In its decision, the NLRB had relied on Board precedent providing that unions and employers can require workers to revoke their dues checkoff authorizations only during specific window periods. However, the circuit court found that precedent assumes workers also can revoke their dues checkoff authorization when a union contract is about to expire, therefore the Board’s decision should be reversed. Stewart v. NLRB.     

A three-judge panel for the Eighth Circuit unanimously rejected Cargill Inc.’s challenge to an NLRB decision finding that the company engaged in an unfair labor practice when it refused to bargain with UFCW after it was certified as the bargaining representative for a unit of shipping, receiving, and packaging employees at a California plant. The company had maintained throughout the underlying unfair labor practice proceeding that the union’s second petition for representation should have been dismissed, that the subsequent secret-ballot election in which the employees voted in favor of the union was invalid, and that the union’s eventual certification by the NLRB was ineffective, therefore it had no duty to recognize or bargain with the union. However, the circuit court rejected Cargill’s contentions finding the Board correctly considered, among other issues, the unit’s appropriateness under Specialty Healthcare, and enforced the Board’s order. Cargill Inc. v. NLRB.     

The First Circuit held that a transport company must bargain with the union that represented its predecessor’s employees. Lily Transportation Corp., a Massachusetts company that transports parts to Toyota dealerships, took over after its predecessor's bankruptcy. Lily refused to recognize the International Association of Machinists and Aerospace Workers, AFL-CIO, claiming a majority of the drivers had rejected the union. The circuit court agreed with the Board’s reliance on precedent holding that a union is entitled to represent the employees of a successor company for a “reasonable period of time” before its majority status can be questioned. NLRB v. Lily Transp. Corp.     

A D.C. Circuit panel granted the NLRB’s application for enforcement of its invalidation of a Banner Health System confidentiality agreement, which barred workers from sharing information about salaries and employee discipline. Banner argued the agreement could not be reasonably construed by employees to suppress NLRA-protected activity. But the court disagreed, holding that a reasonable employee could understand the rule to prohibit discussion of terms and conditions protected by the NLRA. Banner Health System v. NLRB.    

A Washington federal judge denied the IBT’s request for a preliminary injunction that would have stopped Horizon Air Industries Inc. from continuing a signing bonus and tuition reimbursement program for newly hired pilots. The court determined that the union failed to show the those pilots—who had yet to perform work or even begin training—were employees. The union argued that Horizon’s negotiations with individual pilots interfered with the right to bargain collectively through a chosen representative. The court agreed with the company’s arguments that neither the RLA nor the collective bargaining agreement applied to the pilots, and whether the company had a right to provide the bonuses is subject to conference and compulsory, binding arbitration. IBT, Airline Division et al. v. Horizon Air Industries Inc.    

Home health aides and care workers in Illinois objecting to union representation failed to persuade a federal appeals court that the state violated the First Amendment by recognizing and bargaining with an SEIU affiliate. The Seventh Circuit affirmed a lower court’s ruling, which held that because the care providers are not required to join SEIU Healthcare Illinois or to pay dues or fees to the union, the state’s bargaining relationship does not violate the Constitution by compelling the workers to associate with a labor union. Hill v. SEIU Healthcare Illinois.    

The Fourth District Appellate Court in Illinois ordered a stay in the implementation of a bargaining agreement during the continuation of litigation concerning whether the parties reached a bargaining impasse, finding that the union showed “a reasonable likelihood of success on the merits.” The decision makes it impossible for Governor Bruce Rauner (R) to immediately impose new contract terms on the 38,000 workers within the Illinois’ council of American Federation of State, County and Municipal Employees (AFCME). In November, the Illinois Labor Relations Board declared that the State’s negotiations with AFSCME Council 31 had reached an impasse—nearly a year after the State put its “last, best and final” offer on the table. AFSCME immediately appealed that ruling, which is pending in state appellate court. State of Illinois (Dept. of Central Management Services) v. AFSCME and the State of Illinois, Illinois Labor Relations Board, State Panel.     

An NLRB Administrative Law Judge (ALJ) ruled that operators of multiple Domino’s Pizza franchise locations violated the NLRA by implementing and enforcing an arbitration policy that required class action waivers of employment-related disputes. Although the NLRB’s existing precedent that makes arbitration agreements with class waivers illegal is currently on appeal before the U.S. Supreme Court, the ALJ found that it remains valid Board precedent pending any future ruling by the Court. Pizza the Pie LLC et al. v. Henry Thomas Phillips III.     

An NLRB ALJ ordered a Hyundai plant in Alabama to rehire three workers who were fired after they walked off the job over a scheduling conflict. The ALJ found that the walkout was protected concerted activity under the NLRA because the workers left together in response to a change to their working hours. The ALJ disregarded that the workers were not unionized and had not spoken to each other before leaving. Hyundai Motor Manufacturing Alabama, LLC and Richard P. Rouco.     

An NLRB ALJ ruled that a provision of Wisconsin’s right-to-work law, which allows employers to stop collecting workers’ union dues, is preempted by the NLRA. Wisconsin law permits the revocation of a dues-checkoff authorization upon 30-days’ notice, but federal law permits dues-checkoff agreements that are irrevocable for one year. Based on this conflict, the judge found that Metalcraft, a Wisconsin metal fabricator, had illegally pulled back on a valid contractual provision requiring it to collect and give dues to the local International Association of Machinists lodge. Metalcraft of Mayville Inc. and District Lodge 10, IAM.     

The NLRB reserved and remanded an ALJ decision, which held that a school bus driver was wrongfully terminated for threatening other workers if they failed to vote for union representation during an election. The Board found that the ALJ did not permit adequate review due to misapplication of the burden of proof under the Burnup & Sims standard for weighing the legality of a firing. Taylor Motors, Inc. and American Federation of Government Employees (AFGE), AFL-CIO, Local 2022.     

The NLRB held that members of Loyola University of Chicago’s Theology Department should be excluded from a proposed bargaining unit. The Board reasoned that applicants for a job in Loyola’s Theology Department would reasonably expect their responsibilities to require advancing Loyola’s religious mission, therefore the certification of representation should be amended to exclude the faculty in the Department of Theology. Loyola University Chicago and SEIU Local 73.       

An NLRB ALJ found that Two Coach USA Inc. subsidiaries engaged in unfair labor practices when they invited workers to quit if they were not happy with their jobs and threatened workers ahead of a union representation election. Finding that the employer’s threats of discipline interfered with the election results, the ALJ recommended that the results be set aside. Pacific Coast Sightseeing Tours & Charters Inc. et al. and International Association of Sheet Metal, Air, Rail and Transportation Workers-Transportation Division (SMART).    

A Washington state court upheld Seattle’s first-in-the-nation law requiring taxicab and for-hire car companies, like Uber and Lyft, to negotiate with a “driver representative” over working conditions, if a sufficient number of drivers chose to be represented. The court rejected Uber’s claims that the ordinance failed to comply with proper rule-making procedure. The ordinance, however, remains threatened by another lawsuit in federal court brought by the U.S. Chamber of Commerce and drivers represented by the Freedom Foundation and National Right to Work Foundation. Raiser v. City of Seattle, Wash. Super. Ct.     

The NLRB ruled that employees at In-N-Out Burger Inc. could not be prohibited from wearing union buttons supporting the “Fight for $15” campaign to increase minimum wages. The ruling requires In-N-Out to rescind any portion of its national uniform policy, banning workers from donning any unapproved buttons or insignia if the policy does not make exceptions for buttons and other items that pertain to wages, terms, and conditions of employment, union support, and other protected activities. In-N-Out Burger Inc. and Mid-South Organizing Committee.   

An NLRB ALJ ordered a Teamsters union representing Walt Disney Parks and UPS employees to honor eight union members’ resignations from the union and to reimburse them for union dues that were deducted from their wages. Although some of the workers’ requests to leave the union were not timely filed, the judge faulted the union for making it unfairly difficult for workers to get their resignation requests in on time. IBT Local 385 v. Hector L. Santana-Quintana et al.     

The NLRB upheld the noteworthy 2014 Purple Communications (I) ruling, holding that workers who are given access to their employer’s email system must be presumptively permitted to use it while off-duty for labor-law protected purposes. Acting Board Chairman Phil Miscimarra dissented in Purple Communications I and again in II, arguing that businesses should be allowed to lawfully control their own information systems. In dissent, Miscimarra argued that the standard set forth by the majority wrongly presumes that when an employer restricts use of its email system to only business purposes, it unreasonably blocks employees from protected activity. Rather, Miscimarra noted that employees have a whole range of other widely available tools to use to organize, including social media, text messaging, personal email, and face-to-face conversations. Purple Communications Inc. and CWA, AFL-CIO at the NLRB.    

An NLRB Regional Director ruled that licensed vocational nurses (LVN) at a hospital in California did not qualify as supervisors, even though they oversee about three dozen certified nursing aides. The hospital had petitioned to dismiss SEIU Local 2015’s representation petition for a unit of full-time and regular part-time LVNs arguing that the LVNs were supervisors. The Director found that the employer failed to show that the LVNs had sufficiently supervisory authority, where it did not present evidence that they possessed the authority to discipline or effectively recommend discipline of employees utilizing independent judgment or to adjust employee grievances. Kaweah Manor Inc. d/b/a/ Kaweah Manor Convalescent Hospital and SEIU, local 2015 before the NLRB Region 32.     

Columbia University filed its second set of objections with the NLRB regarding a December 2016 graduate student union representation election at which the students voted 1,602-623 in favor of representation by the UAW. The hearing officer rejected the school’s first objections to the election result, finding that the university failed to prove any of the alleged unfair labor actions—that a majority of the eligible voters were forced to walk by UAW organizers and supporters on their way to cast ballots; that union supporters set up a camera on the front steps of the campus polling place and coerced many students on their way to cast ballots; and that students were not required to show identification before voting—occurred or affected the election results. The university claims in its objections that the NLRB hearing officer improperly ignored evidence. Columbia Univ.      

An NLRB Regional Director determined that system operators who work in a New Jersey utility control center are entitled to vote on union representation even though their employer plans to move their jobs out of state. Although the employer argued it had been preparing to move the control center out of state, the NLRB refused to delay a vote on union representation finding that company’s claim rested on conjecture and uncertainty. The company had neither given employees a detailed plan nor identified a specific date or time frame for its action. Atlantic City Elec. Co., N.L.R.B. Reg'l Dir.     

An NLRB Regional Director ruled that seven helicopter mechanics for government contractor L-3 Communications Vertex Aerospace can form a mini-bargaining unit and hold an election to determine if they will be represented by AFL-CIO affiliate, the International Association of Machinist and Aerospace Workers. The director ruled that the mechanics at Aberdeen Proving Ground in Maryland can form a bargaining unit that excludes other L-3 employees at the army base under the NLRB's 2011 Specialty Healthcare standard, which made it harder for employers to challenge so called micro-units. The director rejected the company’s argument that the proposed bargaining unit should have included nine other employees at the base, including additional categories of mechanics, an aircraft inspector and a helicopter pilot. Instead, the regional director concluded that the seven mechanics in the proposed unit were “a readily identifiable group and share a community of interest.” L-3 Communications Vertex Aerospace LLC v. International Association of Machinist and Aerospace Workers, AFL-CIO.     

Employees of PrimeFlight Aviation Services Inc., a service contractor, working at Philadelphia International Airport can go forward with a Board run representation election. The company tried to prevent the election, arguing that it was shielded from NLRB jurisdiction claiming it was a “carrier” under the RLA. In analyzing PrimeFlight’s operations, a Regional Director for the NLRB’s Philadelphia office concluded that not enough control by the carriers existed for RLA coverage. Because the company is not a carrier and it could not be shielded from Board jurisdiction, the election could go forward. PrimeFlight Aviation Services Inc. and SEIU Local 32BJ.