09 July 2018 | National Labor Relations Board | David Pryzbylski

‘BIG Little Lies’: Court Upholds Employee Discharge For Dishonesty

A little white lie never hurt anyone, right? That was the philosophy the National Labor Relations Board (NLRB) appeared to subscribe to last year when it ruled an employer unlawfully discharged an employee for dishonesty because, in the agency’s view, the company had handled terminations for lying inconsistently. That board decision was rendered in Cellco Partnership, 365 NLRB No. 93 (2017).

Fast forward to now. A federal court of appeals reviewed that NLRB order and has overturned it. In other words, the court ruled that the employer was justified in terminating the employee.

At issue in the case was employee Bianca Cunningham, a known union activist. Cunningham was asked by another employee, Victory Esharetur, for advice about a workplace issue. Specifically, Esharetur had concerns about staying late with a manager in light of a disagreement she’d had with the manager earlier in the day, saying she felt threatened. Cunningham told Esharetur that if she were to feel threatened and find herself in the same situation, she would “go home.” So that is exactly what Esharetur did; she clocked out and left work without authorization.

During its investigation into Esharetur’s unauthorized departure from work, the company interviewed Cunningham multiple times. While Cunningham initially denied ever telling Esharetur to leave work, she subsequently admitted to investigators that she had told Esharetur she would leave if she ever found herself in that type of situation. Cunningham also had some inconsistencies in statements she made regarding the nature of her text message exchanges with Esharetur about the incident. The employer considered Cunningham’s inconsistent statements to constitute lying during an investigation and terminated her on that basis.

The NLRB held the company’s termination of Cunningham was unlawful because, among other things, the company purportedly had not consistently terminated other employees who had lied during investigations. The court of appeals rejected that finding, however, as the employer demonstrated via unrebutted evidence at the initial hearing that it did in fact discharge other employees for similar acts of dishonesty in the past. Accordingly, the court overruled the board’s order because the agency’s decision was not supported by “substantial evidence.”

This case serves as yet another reminder that consistency in employee discipline is critical on many levels – including for use in potential defenses in legal proceedings regarding disputed discipline.

Oilrig workers still at risk, unions warn

Daniel Sanderson July 7 2018, 12:01am, The Times

The safety of offshore workers remains at risk three decades on from the Piper Alpha disaster which claimed the lives of 167 men, unions have said.

A memorial service, attended by some of the 61 survivors, was held last night at the Piper Alpha Memorial Garden in Aberdeen. It was held on the anniversary of the explosion of the North Sea platform, the world’s worst offshore disaster.

Mick Cash, of the RMT union, paid tribute to the dead and warned that safety standards had fallen following a downturn in the industry because of the oil price crash in 2014.

His comments echoed a warning from the Health and Safety Executive in April which wrote to all oil and gas operators expressing concern about the number of gas leaks in the industry. The regulator said some had come “perilously close to disaster” and that more needed to be done to tackle them.

“Respecting the memory of the victims should mean adopting the highest possible standards that put safety before profit,” Mr Cash said. “Regrettably, the business model that has developed in the North Sea is putting unwelcome pressure on our members.”

He cited shift patterns, a crisis of confidence in helicopter transport, ineffective regulations and North Sea assets repeatedly changing hands as the “reality for today’s offshore workers”. He said more must be done to ensure workers’ safety, adding: “The consequences of complacency are unthinkable”.

In 1988 at Piper Alpha, faulty maintenance procedures on the platform’s pipelines led to a gas leak igniting and the resulting blast almost destroyed the platform. The fire on the burning rig could be seen from 70 miles away.

Last night’s service was organised by the Rev Gordon Craig, chaplain to the British offshore oil and gas industry. He said: “So many lives were affected on that terrible night and it is right and proper that we take a little time to recognise this. I think it is vital that the industry takes time to remember too. The deaths of those men led to massive improvements in the way safety was managed in North Sea industry. It became an infinitely safer place but it will only remain so if we all play our part.”

Industry representatives read aloud the names of those who died and a lone piper played a lament, followed by a minute’s silence.

Geoff Bollands, 70, who was in the control room on the night of the explosion and was rescued by boat, attended the service with his son. Mr Bollands, from Middlesbrough, told BBC Scotland: “I remember it like it was yesterday. I managed to get off the platform about two minutes before the big fireball — a very sad moment because you knew there would be people caught up in it. I’ll always be grateful that I got off, that I saw my children grow up.”

Select events and news from the world of organized labor June 2018

Organizing

Editorial employees at the New Yorker magazine are seeking voluntary recognition from Condé Nast—the entity that owns the New Yorker—after the majority of the New Yorkers’ staff recently joined the NewsGuild of New York.

The Fast Company’s editorial and photo staff are seeking voluntary recognition from the company after more than half of the company’s 40-member staff signed authorization cards designating the Writers Guild of America East as their bargaining agent.

The Oregon Employment Relations Board (ERB) certified the United Academics of Oregon State University (UAOSU)—an affiliate of both the American Federation of Teachers (AFT) and the American Association of University Professors (AAUP)—to represent approximately 2,400 teaching and research staff at Oregon State University. The Oregon ERB also certified AAUP to represent 175 faculty members at the Oregon Institute of Technology. As result of these certifications, faculty at all seven Oregon public universities are now unionized.

  The United Postal Service (UPS) and the Teamsters reached a tentative agreement after its employees had authorized a strike that would have affected nearly 260,000 UPS employees nationwide. The five-year tentative agreement provides hourly wage increases totaling $4.15 over the life of the contract, improves health and pension benefits, and allows UPS to offer lower pay to a new classification of weekend delivery drivers.

Strikes & Labor Disputes

Boeing Co. announced it will not bargain with the International Association of Machinists (IAM) pending the appeal of a Regional Director’s decision permitting a representation election of a small subset of Boeing’s employees is adjudicated by the NLRB. Boeing maintains that the flight-line employees at its 787 Dreamliner assembly plant in North Charleston, S.C. who voted in favor of the IAM constitute a prohibited “micro-unit.”

National Grid, a U.K.-based electricity and gas utility company, locked out 1,100 workers who operate the company’s natural gas distribution system in Massachusetts. National Grid announced that the lockout would continue until the ratification of a new agreement with the United Steelworkers (UW) Local 12003 and Local 12012-04.

Major Contract Settlements & Negotiations

Locomotive engineers, represented by the Brotherhood of Locomotive Engineers and Trainmen (BLET), ratified an 18-month agreement with Canadian National Railway Co. The agreement covers 475 engineers on the company’s Illinois Central rail line property and provides workers with wage and benefit improvements in each year of the agreement.

The housekeepers, bartenders, and other workers represented by the Culinary Workers Union Local 226 and the Bartenders Union Local 165 ratified a five-year contract with Caesars Entertainment Corp. The agreement covers 12,000 employees and contains “groundbreaking language” on worker security, workloads, technology standards, and immigration. The most notable feature of the agreement is a provision requiring Caesars to provide housekeepers with panic buttons for use when tending to its hotel rooms. The agreement also requires employers to let workers retain their level of seniority if their immigration status changes and they return to the United States within five years.

 GM Resorts International settled a five-year labor agreement with the Culinary Workers Union Local 226 and the Bartenders Union Local 165. The agreement covers 24,000 workers at 10 different MGM resorts in Las Vegas. The agreement contains the same provisions (e.g., sexual harassment, safety, automation, and immigration protections) that were included in the unions’ contract with Caesars Entertainment Corp.

The Stratosphere Casino, Hotel and Tower in Las Vegas agreed to a tentative five-year contract with Culinary Workers Union Local 226 and the Bartenders Union Local 165. The agreement covers 1,300 workers. While the Culinary Workers Union Local 226 and the Bartenders Union Local 165 already negotiated two key collective bargaining agreements earlier this month with hotel chains MGM Resorts International and Caesars Entertainment Corp., the Stratosphere Casino, Hotel and Tower is the first of the independent hotels in Las Vegas to reach a new agreement with the unions.

Graduate students at the University of Washington represented by United Auto Workers (UAW) Local 4121 ratified a three-year labor agreement that provides annual two percent wage increases and healthcare improvements, including the removal of mental-health copayments and additional coverage for cosmetic procedures for transgender patients. The agreement covers 2,394 research and teaching assistants, readers, graders, and tutors at the University of Washington’s Seattle, Tacoma, and Bothell campuses.

AT&T employees performing installation, repair, construction, engineering, and call-center jobs returned to work after a week-long strike. The workers, represented by the Communications Workers of America (CWA) District 4, are covered by one of two collective bargaining agreements. The first agreement, referred to as the AT&T Midwest labor agreement, covers about 9,500 employees in Illinois, Indiana, Michigan, Ohio, and Wisconsin. The second agreement, referred to as the AT&T “Legacy T” labor agreement, covers 3,600 employees across the United States. The strike commenced May 31, 2018, after AT&T attempted to bargain with employees, as opposed to with their union representatives, in order to encourage them to accept AT&T’s version of the labor agreements. AT&T maintains that only 2 percent of its 250,000 workers honored the picket lines, while the union claims more than 10,000 workers participated.

Brown University and the American Federation of Teachers (AFT) reached an agreement providing if at least 30 percent of Brown’s graduate assistants within a proposed bargaining unit execute union authorization cards, the American Arbitration Association will supervise a unionization vote. The agreement further provides that if the union prevails in that vote, Brown will recognize the union and negotiate with it in good faith. This agreement reflects the AFT’s concern that the Republican-majority NLRB will overturn the Board’s 2016 decision allowing graduate student teachers and researchers to unionize. See The Trustees of Columbia University in the City of New York, 364 NLRB No. 90 (Aug. 24, 2016).

In an effort to avoid filing for Chapter 11 bankruptcy protection, Tops Markets settled a contract with Teamsters Local 264 agreeing to create a new $15 million pension fund for its warehouse workers, in place of an earlier agreement that would have cost the company $180 million over a 20-year period.

Bloomberg BNA reports that contract settlements through June 17, 2018 showed an average first-year wage increase of 3.3 percent when bonuses and other lump sums were included, compared to an average first-year wage increase of 3.2 percent during the previous two-week period and an average first-year wage increase of 2.8 percent during the same period in 2017. The rise in the average first-year wage increase from the previous two-week period can be attributed to the manufacturing sector, which rose from an average first-year wage plus bonus payments increase of 3.5 percent to an average first-year wage plus bonus increase of 3.6 percent. When lump-sum payments were not included, the all-settlements average first-year wage increase remained unchanged from the previous two weeks at 3.1 percent. During the same period in 2017, the all-settlements average first year wage increase (excluding lump-sum payments) was only 2.5 percent.

Administrative, Court & Other Decisions

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.

Legislation & Politics

Following the U.S. Supreme Court’s holding in Janus v. AFSCME, Illinois Governor Bruce Rauner announced that the state would immediately cease withholding “fair share fees” from non-unionized public employees’ paychecks. In addition, Governor Rauner proclaimed that he intends to inform state employees of their right to opt-out of union membership. The University of Illinois’ School of Labor and Employment Relations has projected that the Janus decision will result in an 8 percent membership loss for public unions in Illinois, ultimately reducing membership from 317,000 to 268,000.

In response to the U.S. Supreme Court’s Janus v. AFSCME ruling, Senator Mazie Hirono (D-Haw.) and Representative Matt Cartwright (D-Pa.) have introduced the Public Service Freedom to Negotiate Act, which would make it more difficult for public-sector employees to opt-out of paying agency fees. While the text of the legislation has not yet been released, congressional Democrats say that the Act would establish collective bargaining rights in all states and dismantle state right-to-work laws.

Crime, Corruption & Other Misdeeds

Jason Richard, the former secretary-treasurer for United Steelworkers (USW) Local 12-990, was sentenced to six months in prison and two years of supervised released by Judge Salvador Mendoza Jr. of the U.S. District Court for the Eastern District of Washington for embezzling more than $40,000 from the union. The court also ordered Richard to pay $30,649 in restitution. Richard originally pleaded guilty in December of 2017 after an investigation by the U.S. Labor Department’s Office of Labor-Management Standards revealed that he had used the union’s funds for his own personal use over a 10-month period. During the investigation, Richard admitted his guilt to investigators and made two restitution payments totaling $9,400. USA v. Richard, Case No. 4:17-CR-06039-SMJ (E.D. Wash. Apr. 16, 2018).

Magistrate Judge Gabriel W. Gorenstein of the United States District Court for the Southern District of New York ruled that Michael Forde and John Greaney, two former trustees of the United Brotherhood of Carpenters and Joiners of America (UBC), must pay more than $4.97 million in civil damages to four of the UBC’s pension funds for breaching their fiduciary duties to the funds under Employee Retirement Income Security Act (ERISA) and violating the Racketeer Influenced and Corrupt Organizations Act (RICO). In 2011, Forde and Greaney pleaded guilty to charges of racketeering conduct and racketeering conspiracy in violation of RICO for running a scheme to deprive the pension funds of millions of dollars in employer contributions in exchange for bribes. After Forde and Greaney pleaded guilty, the four funds brought the instant civil suit in the Southern District of New York, seeking damages for losses caused by the trustees’ corrupt conduct. New York City Dist. Council of Carpenters Pension Fund v. Forde, 2018 WL 2455437 (S.D.N.Y. June 1, 2018) (report and recommendation).

Cheryl Angell, the former treasurer of United Steelworkers (USW) Local 2-144, was sentenced to thirteen months in prison and three years of supervised release by the U.S. District Court for the Eastern District of Wisconsin for embezzling nearly $100,000 from the union during a four-year period. The court also ordered Angell to pay $98,711 in restitution. While Angell’s attorney argued for leniency given her lack of a criminal record, Judge William C. Griesbach rejected that request, concluding that Angell’s 13-month sentence would deter others from engaging in similar conduct. U.S. v. Angell, Case No. 1-18-cr-00008 (E.D. Wisc. June 20, 2018).

Miscellaneous

Labor union advocates, backed by the Massachusetts AFL-CIO, launched UnionSignUp.com—a website that allows labor union administrators to offer online membership and political action enrollment forms to current or potential members. Labor union advocates hope that the website will make union membership more accessible to young workers.

In a letter dated June 5, 2018, NLRB Chairman John Ring reaffirmed the Board’s commitment to its ethical obligations and confirmed that the Board will engage in a rule-making process to address the 2015 Browning-Ferris joint-employer decision. Chairman Ring’s letter was written in response to a May 2018 letter authored by Senators Bernie Sanders, Elizabeth Warren, and Kristen Gillibrand, alleging that the Board was seeking to overturn the Browning-Ferris joint-employer standard through unethical means.

At a Cornell University event in New York City, NLRB Chairman John Ring told attorneys and agency regional officials that the new Board seeks to bring “balance” to the agency, as it has shifted too far in favor of workers’ rights. In order to effectuate this “balance,” Chairman Ring stated that the board would 1) eliminate unnecessary rules and regulations that burden businesses; 2) provide clarity and predictability to its interpretations of federal labor law; 3) adjudicate labor disputes in a timely manner; and 4) avoid taking sides in unionization disagreements.

According to Pew Research Center’s annual survey on public opinion and unions in the United States, 51 percent of respondents agreed that the “reduction in union representation over the past 20 years has been mostly bad for working people,” while 35 percent of respondents agreed that the reduction was “mostly good.” Moreover, 55 percent of respondents stated that they have favorable opinions of unions and 53 percent of respondents stated that they have favorable opinions of business corporations. In contrast, 68 percent of respondents aged 18–29 stated that they had favorable opinions of unions and only 46 percent of respondents aged 18–29 stated that they had favorable opinions of business corporations.

 President Trump appointed Richard Giacolone to Acting Director of the Federal Mediation and Conciliation Service (FMCS). As Acting Director, Giacolone will be responsible for mediating disputes between parties that have failed to come to an agreement over various labor issues, such as strikes, lockouts, and bargaining agreements.

United Auto Workers (UAW) delegates have elected Gary Jones, a UAW regional director, to succeed Dennis Williams as president of the UAW. In Jones’s first speech as UAW president, Jones encouraged members to contribute to the UAW’s political action committee, V-Cap, and to support only those politicians who champion organized labor.  Jones also emphasized the UAW’s renewed commitment to unionization in the South, as the UAW has recently lost a variety of unionization bids in the region.

In an effort to reduce its field staff and operate within its budget, the NLRB plans to offer buyouts and early retirement to its employees who qualify. These payment programs—referred to as a Voluntary Early Retirement Authority (VERA) and Voluntary Separation Incentive Payment (VSIP), respectively—have already been approved by the Office of Personnel Management.

The United States Department of Labor (DOL) and Department of Justice (DOJ) filed status reports in cases within the United States District Court for the Eastern District of Arkansas, the United States District Court for the District of Minnesota, and the Court of Appeals for the Fifth Circuit, notifying the courts that the DOL was about to release a new regulation that will revoke the Obama-era “persuader” rule. These cases represent just a few of the many suits challenging the “persuader” rule, which currently requires employers to report any “actions, conduct or communications” undertaken to “affect an employee’s decisions regarding his or her representation or collective bargaining rights.” Associated Builders and Contractors of Ark., et al. v. R. Alexander Acosta, et al., Case No. 4:16-cv-00169 (E.D. Ark.); Labnet Inc., et al. v. U.S. Dep’t of Labor, et al., Case Number 0:16-cv-00844 (D. Minn.); Nat’l Fed. of Indep. Bus., et al. v. R. Alexander Acosta, et al., Case Nos. 17-10328, 17-10054 (5th Cir.).

At its convention in Atlantic City, N.J., the International Federation of Professional and Technical Engineers (IFPTE) announced that Paul Shearon and Matt Biggs will assume the positions of IFPTE President and Secretary-Treasurer, respectively. IFPTE’s former President, Greg Junemann, declined to seek re-election after holding the position since 2001. The IFPTE, which represents approximately 80,000 public and private employees in the U.S. and Canada, has vowed to develop new strategies to address the U.S. Supreme Court’s Janus v. AFSCME decision.