In a 5–4 opinion, the U.S. Supreme Court held that “agency fee” arrangements, in which public employees who decline to join a union must still pay a percentage of union member dues, violate the First Amendment because they cannot pass the “exacting” scrutiny test, which requires that a compelled subsidy “serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.” In doing so, the Court expressly overruled its decision in Abood v. Detroit Board of Education, which had upheld a similar law, finding that Abood was “poorly reasoned,” had “led to practical problems and abuse,” and was “inconsistent with other First Amendment cases.” Janus v. Am. Fed’n of State, Cty., and Mun. Emps., 585 U.S. ___ (2018).
The National Labor Relations Board (NLRB or Board) unanimously denied Hy-Brand Industrial Contractors, Ltd.’s request to reconsider its order vacating the Board’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017) in light of the determination by the Board’s Designated Agency Ethics Official that Member William Emanuel should have been disqualified from participating in the proceeding. Emmanuel did not take part in the NLRB’s denial of Hy-Brand’s request for reconsideration. Hy-Brand Indus. Contractors, Ltd.
An Administrative Law Judge (ALJ) ruled that Wisconsin-based Teamsters Local 200 committed an unfair labor practice by requiring Roundy’s Supermarket Inc. to deduct union dues from an employee’s pay who had not authorized dues deductions in writing when he resumed work at Roundy’s after a seven-week gap in his employment. Teamsters “General” Local Union No. 200, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am.
The NLRB held that a construction contractor committed an unfair labor practice by asking an employee whether he had signed a union representation card authorizing the United Brotherhood of Carpenters (UBC) to represent him. While the ALJ had found this question harmless, the NLRB disagreed, reasoning that because the employee was only one of two carpenters employed by the construction contractor, the interrogation of a single employee was coercive and unlawful. The NLRB’s decision highlights its current policy to evaluate the “totality of the circumstances” in determining whether an employer’s inquiries regarding union activity amount to unlawful interrogation. Bristol Indus. Corp.
The U.S. Court of Appeals for the Ninth Circuit rejected the International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers Union (Ironworkers) Local 433’s motions to modify the language contained in the 1991 and 1999 consent contempt adjudications prohibiting the Ironworkers Local 433 from picketing at neutral government entities during its union disputes with private employers. The consent decrees were entered by the NLRB, and later upheld by the Ninth Circuit, after the Ironworkers engaged in impermissible secondary boycotts (i.e., boycotts that are directed at parties who are not involved in the labor dispute) in violation of Section 8(b)(4)(ii)(B) of the NLRA. In its motions, the Ironworkers argued that the U.S. Supreme Court’s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) rendered Section 8(b)(4)(ii)(B) unconstitutional because the statute violated the Ironworkers’ First Amendment right of free speech. The Ninth Circuit disagreed, holding that the Ironworkers failed to meet its burden of demonstrating that Reed significantly altered the legal landscape, as was required to modify a consent decree. NLRB v. Int’l Ass’n of Bridge, Structural, Ornamental & Reinforcing Ironworkers Union, Local 433, 891 F.3d 1182 (9th Cir. 2018).
The Court of Appeals for the D.C. Circuit vacated a NLRB decision holding that language in a pre-hire agreement stating “the Union has offered to provide the Employer with confirmation of its support by a majority of such employees,” was sufficient to convert a pre-hire agreement into a Section 9(a) relationship between the employer and the union. By way of background, Section 9(a) of the NLRA provides that a union that obtains the support of the majority of the employees in a unit will become the recognized representative of those employees, and the employer will be required to bargain with the union on the terms and conditions of employment. Yet, Section 8(f) of the NLRA allows employers and unions in the construction industry to enter into a “pre-hire agreement” wherein the employer and union agree in advance that the union will represent employees and negotiate the initial terms and conditions of employment without any vote by the employees themselves or often even before any employees are hired. However, unless the union either petitions for a representation election or demands recognition from the employer by providing proof of majority support, a Section 9(a) relationship between the employer and union does not exist, and therefore the employer may disavow the terms of the pre-hire agreement when it expires and has no obligation to bargain with the union upon expiration of the agreement. In its decision overruling the NLRB, the D.C. Circuit reasoned that there was insufficient evidence to establish that the employees had transitioned from a pre-hire arrangement by affirmatively choosing the union as their bargaining representative, as the union could not proffer any votes, petitions, authorization cards, or other evidence demonstrating that the employees had conferred Section 9(a) status on the union. Colorado Fire Sprinkler, Inc. v. NLRB, 891 F.3d 1031, 1039 (D.C. Cir. 2018).
The U.S. Court of Appeals for the Eighth Circuit affirmed a NLRB ruling that a Burger King Corp. franchisee unlawfully issued disciplinary notices to six employees who participated in a one-day strike organized by the Workers Organizing Committee-Kansas City. The Eighth Circuit rejected the Burger King Corp. franchisee’s argument that because the employees had engaged in previous strikes against the franchisee’s predecessor, the employees’ strike constituted an intermittent work stoppage and thus, was not protected. NLRB v. EYM King of Missouri, LLC, 2018 WL 2945952 (8th Cir. June 12, 2018).
The United States District Court for the Northern District of Illinois dismissed a lawsuit brought against U.S. Smokeless Tobacco Co. by three former employees, alleging claims of defamation, intentional infliction of emotional distress, and breach of contract. In its decision, the court reasoned that because the adjudication of plaintiffs’ claims required interpretation of the collective bargaining agreement between the company and plaintiffs’ union, § 301 of the Labor Management Relations Act (LMRA) preempted plaintiffs’ claims. Schreiner v. U.S. Smokeless Tobacco Co., 2018 WL 2967044 (N.D. Ill. June 12, 2018).
The U.S. Court of Appeals for the District of Columbia vacated a “legally unsupportable” NLRB decision that held that Unite Here!, Local 5 did not commit an unfair labor practice when it accidentally sent letters to the Hyatt Regency Waikiki hotel’s non-unionized employees demanding that they pay membership dues. In its decision, the D.C. Circuit held that the letters—which demanded payment from employees who had rejected full union membership and also simultaneously initiated the garnishment process to collect the full dues from the employees—reasonably tended to coerce or restrain the non-unionized Hyatt employees in the exercise of their statutory right to limit their association with the union. Tamosiunas v. NLRB, 2018 WL 2993222 (D.C. Cir. June 15, 2018).
The U.S. Court of Appeals for the District of Columbia enforced a NLRB decision holding that a unionized manufacturer that created a separate non-union shop unlawfully refused to recognize the union representing the manufacturer’s incumbent employees, noting the manufacturer bestowed substantial economic benefits on the new non-union operation without any formal agreements in place, coupled with the fact that non-union employees performed the same work as the unionized operation, used the same equipment, and worked in the same building, the new operation was an “alter-ego” of the unionized manufacturer, and therefore was required to recognize the union as the representative of the shop’s workers. Island Architectural Woodwork, Inc. v. NLRB, 2018 WL 2992909 (D.C. Cir. June 15, 2018).
The U.S. Court of Appeals for the Seventh Circuit refused to enforce an arbitrator’s decision that contradicted a NLRB Regional Director’s representation determination, holding that an arbitration award cannot supersede the NLRB’s decision regarding composition of a bargaining unit. Part-Time Faculty Ass’n at Columbia Coll. Chicago v. Columbia Coll. Chicago, 2018 WL 2994243 (7th Cir. June 15, 2018).
The NLRB held that Las Vegas-based Circus Circus Casinos Inc. unlawfully proceeded with a disciplinary meeting with a suspended worker after the worker informed Circus Circus that he was without union representation because he could not get in touch with his union prior to the meeting. The Board majority reasoned that the workers’ statement to Circus Circus regarding his inability to locate his union representative constituted a request for representation. Circus Circus Casinos, Inc. d/b/a Circus Circus LasVegas.
The NLRB held that UPS Supply Chain Solutions Inc. unlawfully insisted that Unión de Tronquistas de Puerto Rico, Local 901 translate its collective bargaining agreement proposal from Spanish to English before proceeding with the negotiations. The NLRB cited the Board precedent holding that parties cannot “hold collective bargaining hostage to unilaterally imposed preconditions on negotiations.” The NLRB then ordered the employer to, upon the union’s request, bargain with Local 901 for a minimum of 24 hours per month, for at least six hours per bargaining session. UPS Supply Chain Sols., Inc.
The U.S. Court of Appeals for the District of Columbia denied enforcement of a NLRB decision concluding there was insufficient evidence to support the Board’s finding that Verizon’s termination of an employee for lying during an investigation was, in reality, a ploy to discharge a prominent union member for her union activity. In its decision, the D.C. Circuit pointed to a lack of any evidence in the record to establish that Verizon possessed anti-union animus, and reasoned that Verizon made “a legitimate business judgment” when it terminated the employee, as “lying during an investigation is a serious threat to management of the enterprise.” Cellco P’ship v. NLRB, 2018 WL 3028842 (D.C. Cir. June 19, 2018).
Regional Director John Walsh of the NLRB’s New York-based Region 2 office determined that a Charter Communications Inc. employee who recently transitioned out of a supervisory role did not possess any indicia of supervisory status when he filed a petition to decertify the International Brotherhood of Electrical Workers (IBEW) Local Union 3. Accordingly, Walsh concluded that the employee’s petition to decertify was valid and subsequently ordered a union decertification election to be held by mail-in ballot. Charter Commc’ns (Successor to Time Warner Cable of NYC) and Bruce Carberry and Local Union No. 3 Int’l Bhd. of Elec. Workers.
The U.S. Court of Appeals for the Ninth Circuit upheld an arbitration award reforming the collective bargaining agreement at issue even though the agreement contained a “no-add” provision. The appellate court reasoned the arbitrator was permitted to remedy a defect in the agreement, which was the result of mutual mistake. The court further held that the employer waived its right to challenge the arbitrator’s jurisdiction by conceding that the dispute was arbitrable and by failing to expressly preserve the right to contest jurisdiction in a judicial proceeding. ASCARO LLC v. United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied Indus. and Serv. Workers Int’l Union, AFL-CIO, CLC, Case No. 16-16363 (9th Cir. June 20, 2018).
The Ninth Circuit Court of Appeals affirmed dismissal of an employer’s lawsuit seeking a declaratory judgment that its collective bargaining agreement with the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada, AFL-CIO (IATSE) was void because IATSE intentionally and negligently misrepresented the terms of that agreement to the employer. Relying upon the U.S. Supreme Court decision Textron Lycoming Reciprocating Engine Division, Avco Corp. v. United Automobile, Aerospace, and Agricultural Implement Workers of America, 523 U.S. 653 (1998), the Court reasoned that because Section 301(a) of the LMRA only grants jurisdiction to federal courts for breach of contract claims, and the employer did not allege a breach of the agreement, the district court did not have subject matter jurisdiction over the dispute. Nu Image, Inc. v. Int'l All. of Theatrical Stage Employees, Moving Picture Technicians, Artists & Allied Crafts of United States, Its Territories & Canada, AFL-CIO, CLC, 2018 WL 3040126 (9th Cir. June 20, 2018).
The United States Supreme Court ruled that the Securities and Exchange Commission’s (SEC’s) Administrative Law Judges (ALJ) are “Officers of the United States,” and are therefore subject to the Appointments Clause of the U.S. Constitution. Because the Supreme Court’s ruling was limited to SEC ALJs, the officer status of ALJs at other federal agencies, including the NLRB, remains undecided. Lucia v. S.E.C., 585 U. S. ____ (2018).
The NLRB found that Teamsters Local 385 acted unlawfully when it repeatedly and deliberated ignored both Walt Disney World and the United Parcel Service (UPS) employees’ letters, telephone calls, and/or in-person inquiries regarding the cancellation of their dues checkoff authorizations and failed to honor these employees’ membership resignation requests. As a remedy for its unlawful conduct, the NLRB ordered the union to refund union dues to certain employees and to mail notices to employees informing them of their right to resign from the union and to cancel union dues-related payroll deductions. Int’l Bhd. of Teamsters, Local 385 (Walt Disney Parks and Resorts U.S., Inc.).
The NLRB affirmed an ALJ’s finding that the Viejas Band of Kumeyaay Indians unlawfully reduced year-end bonuses for the 490 unionized cooks, servers, cashiers, bartenders, and other employees working at its Alpine, Calif. casino without first bargaining with the United Food and Commercial Workers International (UFCW) Local 135. In its defense, the tribe argued that it provided notice of the planned reduction in year-end bonuses when it explained during bargaining that “if certain profit targets were met, it intended to use the year-end bonus to correct the inequity in pay across its employees.” The NLRB ruled the tribe’s statements were “too indefinite and unspecific to provide the Union with a reasonable opportunity to request bargaining.” The tribe further argued that the “zipper” clause in the parties’ collective bargaining agreement permits the tribe to make unilateral changes to annual bonuses, but the Board disagreed reasoning that “generally worded zipper clauses” cannot amount to a clear and unmistakable waiver of bargaining without evidence that the parties bargained over the “zipper” clause or discussed the effect of the “zipper” clause on past practices. Viejas Band of Kumeyaay Indians d/b/a Viejas Casino & Resort.
The NLRB ruled that Time Warner Cable lawfully suspended four workers who participated in a 90-minute demonstration outside of a Brooklyn, N.Y. Time Warner facility. The NLRB ruled the demonstration violated a “no-strike” clause contained in the company’s contract with the International Brotherhood of Electrical Workers (IBEW) Local 3, and the workers were not engaged in a protected concerted activity under the NLRA when they joined the demonstration. Time Warner Cable New York City, LLC.
The NLRB affirmed an ALJ decision finding that the entities that operate the Holiday Inn Express Sacramento unlawfully (1) engaged in bad-faith bargaining with Unite Here Local 49, (2) promised its workers better benefits if they refrained from union activity, (3) threatened other workers with repercussions if they supported the union, and (4) pressured workers to join a decertification petition. While the ALJ ordered that the hotel bargain with the union, declared that the union’s majority status could not be challenged for six months, and required the hotel to post a notice explaining its unlawful activity, the NLRB found that these aforementioned remedies were not sufficiently severe, directing the hotel to publicly read a remedial notice to its employees during working hours. Kalthia Group Hotels Inc. and Manas Hospitality LLC d/b/a Holiday Inn Express Sacramento.
Relying upon the U.S. Supreme Court’s holding in Epic Sys. Corp. v. Lewis, 584 U.S. ___ (2018), the Court of Appeals for the Eleventh Circuit reversed two NLRB decisions holding an employer violated the NLRA by maintaining and enforcing an employment agreement requiring that employment disputes be resolved through arbitration. The Eleventh Circuit also reversed and remanded the NLRB’s rulings that the arbitration clauses in the employment agreements caused the employers’ employees to reasonably believe that they were prohibited from filing unfair labor charges with the NLRB. In doing so, the Eleventh Circuit explained that because the NLRB “refashioned its test for determining whether an employer’s allegedly facially neutral policy . . . could reasonably lead an employee to believe that she could not file an unfair labor charge with the NLRB” in The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the NLRB needed to apply that standard to the arbitration clauses at issue. Everglades Coll., Inc. v. NLRB, 2018 WL 3120274 (11th Cir. June 26, 2018); Cowabunga, Inc. v. NLRB, 2018 WL 3120203 (11th Cir. June 26, 2018).
The NLRB held that DISH Network Corp. unlawfully altered wages and benefits for 45 Texas-based technicians and warehouse employees represented by the Communications Workers of America (CWA) after wrongfully declaring that the parties had reached a good-faith impasse in negotiations. The Board reasoned that while DISH Network and the CWA had engaged in protracted negotiations over a bargaining agreement for more than four years (25 bargaining sessions), the parties had not reached a good-faith impasse because the union “consistently sought additional bargaining sessions” and proposed an offer that constituted “an appreciable change in its position on the most important subject” of bargaining. DISH Network Corp.
In a memorandum entitled “Guidance on Handbook Rules Post-Boeing,” General Counsel Peter Robb provided direction to the NLRB’s Regional Directors regarding the placement of various types of rules into the three categories set forth in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). In the memorandum, General Counsel Robb also addressed the specific Section 7 interests and business justifications Regional Directors should consider when arguing to the Board that certain Category 2 rules are unlawful. In addition, General Counsel Robb further underscored the significance of Boeing, stating that Regional Directors should “now note that ambiguities in rules are no longer interpreted against the drafter,” and that “generalized provisions should not be interpreted as banning all activity that could conceivably be included.”
NLRB General Counsel Peter Robb issued a Memorandum to the NLRB’s Regional Directors in support of the use of temporary injunctive relief under Section 10(j). In the Memorandum, General Counsel Robb urged Regions to expedite the processing of any potential injunction case that “raises a threat of irreparable harm or remedial failure.” General Counsel Robb also directed the Regions to continue to submit injunction recommendations to the Injunction Litigation Branch (ILB) for approval. However, General Counsel Robb warned the Regions that because “extraordinary remedies” were difficult to obtain, the Region must include in its submission to the ILB adequate evidence to support any extraordinary remedy requested by an injunction. Utilization of Section 10(j) Proceedings, GC 18-05 (June 20, 2018).
The NLRB General Counsel disseminated six advice memoranda issued by the NLRB’s Division of Advice. In one of the two noteworthy advice memorandums, Associate General Counsel Jayme L. Sophir contended that a Papa John’s Pizza worker who missed work to participate in a Fight for $15 convention and other analogous protests was unlawfully terminated for absenteeism. Although the Papa John’s franchisee argued that the employee was not protected by the NLRA because he was the only employee that missed work to participate in the convention and related protests, Associate General Counsel Sophir concluded that the “solo strike” was protected because it assisted a labor union in furtherance of the union’s organizing efforts. In a second notable advice memorandum, Associate General Counsel Sophir took the side of a nursing home that had fired an employee for both failing to report an incident of resident neglect in violation of the nursing home’s resident abuse policy and for posting about the neglect on Facebook in violation of the nursing home’s social media policy. Associate General Counsel Sophir argued that even if the employee’s Facebook post was protected concerted activity, the employee’s failure to report the neglect in violation of the resident abuse policy served as an independent ground for termination. Papa John’s Pizza; Brighton Rehabilitation.