The NLRB ruled that a fitness club operator’s arbitration policy, which waived employees’ rights to participate in class or collective actions, violated Section 8(a)(1) of the National Labor Relations Act (NLRA), despite the inclusion of an opt-out feature. The Board rejected the employer’s defense that the opt-out made the dispute resolution process voluntary, relying on its 2015 decision in On Assignment Staffing Services, which held a non-mandatory arbitration policy that precluded collective action still violated the NLRA because it interfered with employees’ right to engage in concerted activity. 24 Hour Fitness USA, Inc.    

The U.S. Court of Appeals for the Third Circuit ruled that under the federal bankruptcy code, a Chapter 11 debtor-employer may reject or modify labor obligations established in a collective bargaining agreement (CBA), even after the agreement has expired. Section 113 of the bankruptcy code provides that a debtor may “reject a collective bargaining agreement” if it has proposed modifications, an employee representative “has refused to accept such proposal without good cause,” and “the balance of equities clearly favors rejection of such agreement.” The court determined that Section 1113 does not distinguish between an unexpired CBA and the continuing terms and conditions of an expired CBA. In re Trump Entm’t Resorts.    

A divided NLRB held that a memorandum of understanding requiring the NLRB’s General Counsel to defer action in cases where an unfair labor practice charge and an Occupational Safety and Health Act (OSHA) complaint cover “the same factual matters” does not require NLRB officials to resolve the deferral question before issuing investigative subpoenas to employers. The issue arose when a manufacturing company asked the Board to revoke investigative subpoenas issued by the General Counsel. The Board rejected the employer’s petition to revoke, finding that a 1975 agreement between the General Counsel and OSHA did not prevent the Board officials from investigating unfair labor practice charges against the company. Lear Renosol Selma Mfg. Facility.    

The Tenth Circuit affirmed an NLRB decision awarding back pay to hospital workers and refusing to deduct interim earnings from the award. In 2004, the NLRB determined the hospital violated the NLRA by reducing its employees’ hours without bargaining with the workers’ union, and awarded the workers back pay for lost earnings and benefits. The Board reasoned that in cases where there is not a complete loss of employment, deducting interim earnings from back pay would make aggrieved employees no better off than co-workers who remained underemployed. The circuit court determined it was bound to defer to the Board’s remedial choice, so long as the selected remedy was not contrary to federal labor law. NLRB v. Cmty. Health Servs., Inc.    

The U.S. Court of Appeals for the D.C. Circuit denied a Board petition for rehearing of a panel decision that former NLRB General Counsel Lafe Solomon’s 2010 appointment as the acting general counsel of the NLRB became invalid once he received a presidential nomination to serve in the position. The court relied on a provision of the Federal Vacancies Reform Act (FVRA), which prohibits a person from being both the acting officer and the permanent nominee. President Obama relied on the FVRA when he appointed Solomon to act as the agency’s chief lawyer, but the circuit court panel determined that the FVRA prohibited Solomon’s continued service in the job once the president nominated him to serve a four-year term in the position. Because the Board’s unfair labor practice against the employer was based on a complaint issued by Solomon during the period when he was improperly serving in the NLRB post, the D.C. Circuit panel concluded the order was not enforceable. SW Gen., Inc. v. NLRB.    

The D.C. Circuit Court of Appeals upheld a NLRB ruling finding that DHL Express Inc. violated federal labor law by interfering with employees handing out union literature in a “mixed-use” hallway of its national cargo hub at the Cincinnati airport. The Board instructed that an area is considered to be of “mixed-use” when minimal or solely incidental work is conducted. According to the Board, prohibiting distribution in a “mixed-use” area during non-work time is an unfair labor practice, unless the employer can justify this restriction based on special circumstances. The circuit court upheld the Board’s finding that DHL failed to demonstrate any special security or safety circumstances that justified interfering with employee activity. DHL Express, Inc. v. NLRB.    

As part of the NLRB’s nationwide investigation into unfair labor practice charges against McDonald’s and its franchises, the Board appealed to a federal district in Illinois to require McDonald’s franchises to produce employment-related documents. The federal judge ruled that nine McDonald’s franchises in Illinois must produce various documents related to their operations and rejected the company’s argument that the Board’s subpoenas for documents, including handbooks and wage and benefits information, were overly burdensome. NLRB v. K. Mark Enterprises.    

The NLRB ruled in a 2-1 decision that a Veolia Transportation Services “road supervisor” was an employee, rather than a statutory supervisor. Reversing a regional director’s decision on the issue, the Board decided that although “road supervisors” observe coach operators in the field, they are employees under the NLRA because they lack authority to impose, or effectively recommend, discipline. The Board reasoned that management officials, not road supervisors, are ultimately responsible for administering discipline. Veolia Transp. Servs.    

An NLRB regional director declined to exercise jurisdiction over a union representation case involving Carroll College, a Catholic college in Montana, and dismissed a union’s petition for an election among school faculty members. The Board held it would not assert jurisdiction over any institution that holds itself out as providing a religious educational environment where faculty performs a specific role in creating or maintaining that religious environment and could be subject to employment-related decisions based on religious considerations. The NLRB reasoned that Carroll College held itself out as providing a religious educational environment, and that the school reserved the right to discharge faculty members for disregarding the school’s Catholic mission. Moreover, the regional director found that some faculty members covered by the union’s petition were managerial employees, and thus not protected employees under the NLRA.