Explosion of Right-to-Work Laws May Cut the Lifeblood of Labor Unions.

Labor unions in the private sector continue to shed members at rates that any union officer would find alarming, according to the U.S. Department of Labor’s Bureau of Labor Statistics.

By Mark J. Neuberger May 8, 2017

Labor unions in the private sector continue to shed members at rates that any union officer would find alarming, according to the U.S. Department of Labor’s Bureau of Labor Statistics (BLS). Membership dues are the lifeblood of any union because they are a major source of revenue. If dues decrease or cease altogether, there is no funding to organize non-union employers, lobby state and federal government, and campaign for candidates.

The BLS survey reveals that only 6.4 percent of private sector workers belong to a union. The numbers reflect a more than thirty-year decline in the private sector unionization rate (down from 16.8 percent in 1983). The reasons for the membership decline are many, but what may be unions’ death knell is the explosion of laws which seek to cut the flow of dues to unions.

Under the National Labor Relations Act (NLRA), the federal law that regulates most private sector union-management relations, unions can negotiate what are known as Union Shop clauses. In a Union Shop, if a worker is hired into a job that is covered by a union contract, they must begin paying union dues after some initial period, usually thirty days. If the worker refuses to pay dues or some alternative, the employer must fire the worker. Unions can also negotiate what are known as Union Dues Checkoff clauses. Under this scheme, the employer withholds the mandated dues directly from the worker’s paycheck and the employer then transmits the money to the union. This insures the union gets a steady and uninterrupted flow of revenue. Many people believe that the Union Shop/Dues Checkoff combo is undemocratic and runs contrary to peoples’ right to choose what organizations they want to join and financially support.

In 1947, the NLRA was amended in part due to a public outcry over some major labor strikes that put a crimp on the country’s post-war recovery. At that time, many believed that unions had become too powerful. Among other reforms, the 1947 amendments allowed individual states to pass “Right-to-Work” laws (RTW) that outlaw compulsory union membership. For many years, the number of states with such laws held at about 20, all of which were located in the south, a region that had been traditionally hostile toward organized labor.

Starting about six years ago, there was a renewed interest in RTW laws in northern states that had elected conservative Republican governors. What was revolutionary was that RTW laws were passed industrial powerhouse states such as Michigan, Wisconsin and Indiana. These states had historical rates of unionization that were much higher than the national average and were places where major unions like the Autoworkers, Steel Workers, Teamsters and Service Workers had considerable political clout.

Today, 28 states have enacted RTW laws with Missouri being the most recent. Most of these laws prohibit mandatory union dues in the public sector as well. Additionally, even local governments have jumped on the RTW bandwagon. When RTW advocates in Kentucky were unable to pass a state-wide law, Hardin County and then several others, passed county-wide RTW laws. The ability of municipalities to pass local RTW laws survived a legal challenge when the Sixth Circuit Court of Appeals ruled in UAW v. Hardin County.

To bring some uniformity to the hodgepodge of jurisdictions with RTW laws, earlier this year, Rep. Steven King (R- IA) introduced H.R. 785 — the National Right-to-Work Act — which seeks to outlaw compulsory union membership in most private sector jobs. If this bill passes and is signed into law by the President Trump, organized labor in America will be scrounging to find its next dollars in the form of union dues.

Unions argue that RTW is inherently unfair because under the NLRA they must represent all workers in the bargaining unit regardless if they pay dues or not. Proponents of RTW argue that businesses prefer to place manufacturing plants in RTW areas and the effort to bring high paying manufacturing jobs back would be enhanced by national uniformity. Perhaps most importantly, RTW proponents argue every person should have the right to decide what organizations to join and where to spend their money. If RTW becomes the law of the land, union political and economic clout will surely decline and may radically change the dynamic of U.S. labor relations.

April 2017 Select events and news from the world of organized labor

Organizing

The Service Employees International Union (SEIU) withdrew its petition to represent non-tenured faculty at Fordham University 10 days after filing the petition, citing concern about the inevitable lengthy legal battle that would ensue with the college. Fordham intended to object to the petition on the basis that the college is exempt from the NLRB process due to its status as a religious institution. The college further maintained that full-time and part-time non-tenured faculty in different academic departments should not be part of the same bargaining unit. The non-tenured faculty and the SEIU are said to be considering alternatives to the NLRB representation process, including through the American Arbitration Association (AAA).

American University’s graduate student employees overwhelmingly voted in favor of representation by SEIU Local 500. The bargaining unit consists of 761 students in the university’s doctoral and master’s degree programs, including teaching assistants, research assistants, graduate assistants, laboratory assistants, teaching apprentices, dean’s fellows, instructors, and tutors. The bargaining unit represents the first group of student workers in Washington D.C. to organize. American University has no plans to challenge the election results.

The Teamsters have begun a campaign aimed at organizing Uber drivers in Washington state. However, the Teamsters have already faced pushback, including from 10 Uber drivers in Washington who recently filed a federal lawsuit challenging the Teamsters’ efforts to organize ride sharing drivers.

According to the Department of Labor’s (DOL) newly released reports, some of the nation’s largest unions lost between 5,000 and 20,000 members over the course of last year alone. Notably, in 2016, the United Steelworkers (USW) lost 20,000 members; the United Food and Commercial Workers (UFCW) lost 14,000 members; and the Teamsters and Machinists each lost 5,500 members. However, some unions saw increases in membership in 2016. The United Auto Workers (UAW) increased its membership from 408,639 to 415,963 in 2016, while the SEIU increased from 1,887,941 to 1,901,161. One source impacting the unions’ increased membership may be attributable to organizing focused on large units of workers at universities. Moreover, in 2016, the SEIU and the UAW ranked first and second in both representational and political expenditures, respectively, as the SEIU spent $142.4 million on representational expenditures and $61.6 million on political expenditures, while the UAW spent $99.1 million on representational expenditures and $13.2 million on political expenditures. The DOL’s reports also revealed that the two highest paid union leaders in 2016 were Teamsters President James Hoffa, who was paid $386,344, and UFCW President Marc Perrone, who was paid $354,568.

Strikes & Labor Disputes

Teamsters Local 812 initiated a strike at Clare Rose Inc., a Long Island beer distributor, after the company announced a 30 percent reduction in wages along with its plans to discontinue its participation in the union’s pension plan. The company’s mechanics, who are represented by Machinists Local 447, also walked out in solidarity with the Teamsters. While the company and the Teamsters had attempted to negotiate over a period of several months, the union ultimately rejected the company’s final offer by a vote of 107-9.

About 1,800 Charter Communications, Inc. workers, ranging from warehouse and service technicians to the members of the engineering department, represented by the International Brotherhood of Electrical Workers (IBEW) Local 3 in New York and New Jersey have remained on strike since late March, when their contract with the company ended. Despite the company’s offer of wage increases, the members are opposing proposed cuts to health care and pension plans.

Eight members of UNITE HERE Local 33 have begun an indefinite “symbolic” hunger strike, pledging that they will continue to strike until Yale University begins its first contract negotiations with the union. Yale has refused to negotiate with the union until the NLRB comes to a decision on whether the union’s micro-unit strategy of organizing by department, rather than by a school-wide bargaining unit, was proper.

Ft. Smith, Ark.-based Exide Technologies and IBEW Local 700 resumed negotiations after the company effectuated a one-day lockout that affected 135 union members. The negotiations have centered around cuts in overtime pay and other compensation concerns.

Major Contract Settlements & Negotiations

Bloomberg BNA reports that contract settlements through April 17, 2017 showed an average first-year wage increase of 2.6 percent, compared to an average first-year wage increase of 2.7 percent during the same period in 2016. Median first-year wage increases for settlements decreased to 2.3 percent, compared to 2.5 percent in 2016, and the weighted average rose to 2.7 percent, compared to 2.5 percent during the same period in 2016. When construction and state and local government contracts were excluded, the all-settlements average fell to 2.9 percent, compared to 3.1 percent during the same period in 2016. The median increase when those sectors were excluded decreased to 2.5 percent, compared to 2.8 percent in 2016, and the weighted average fell to 2.5 percent, down from 3 percent in 2016. When lump-sum payments were included, the all-settlements average first-year wage increase declined to 2.8 percent, compared to 2.9 percent in 2016. The median increase when lump-sum payments were included was 2.5 percent, the same as in 2016, and the weighted average was 3.8 percent, compared to 2.7 percent during the same period in 2016.

Employees at Utah copper mining operation, Rio Tinto Kennecott, ratified a five-year contract. The contract covers 1,200 workers who are represented by four unions: the USW, the International Union of Operating Engineers (IUOE), the International Association of Machinists (IAM), and the IBEW. Under the contract, workers will be given annual wage increases between 2 to 3 percent, as well as health care coverage improvements, an updated health and safety program, and additional funding for employee benefit and retirement plans.

Southwest Airlines Co. reached a tentative agreement on a new labor contract with the Teamsters. The agreement covers about 300 stockroom workers and would provide annual pay increases totaling 27.3 percent on average over the life of the contract. The agreement also eliminates Southwest’s two-tier pay scale, and shortens the number of years of service required for an employee to reach the maximum pay rate from 21 years to 11 years.

Tennant Healthcare Corp. nurses, represented by the National Nurses Organizing Committee, at two Texas hospitals ratified contracts that will increase their hourly wages by an average of 9 percent over the term of the agreements. According to the agreements, nurses with the least experience will receive a minimum hourly wage of $24.36 in 2019, while nurses with more than 20 years of experience will receive a minimum hourly wage of $40.78. The contracts also provide additional health and safety protections to address the nurses’ concerns relating to their exposure to infectious disease, as well their safety when faced with violent patient behavior. The agreements, which cover over 700 nurses, are retroactive to December 1, 2016, and expire on November 30, 2019.

Teamsters-represented flight dispatchers at Atlas Air and Polar Air Cargo ratified a four-year agreement that includes a 30 percent wage increase over the term of the contract and provides moving provisions to benefit workers who were affected by the company’s recent relocation of its flight dispatch operations to Cincinnati.

AT&T and the IBEW reached a tentative five-year agreement covering nearly 5,000 members of the IBEW System Council T-3, primarily in Illinois and Northwest Indiana. Their current contract expires on June 24, 2017. AT&T also announced that it will hire an additional 1,000 workers into IBEW-represented jobs over the next five years.

Administrative, Court & Other Decisions

The U.S. Court of Appeals for the Eighth Circuit held that a foreman, who recommended family friends for hire, was a supervisor and therefore could not vote in an NLRB election. The company claimed it did not have any supervisors at its Missouri quarry and that the company’s owner—whose principal office was located 621 miles from the quarry—singlehandedly supervised all of the quarry’s employees. In its decision, the Eighth Circuit focused upon the foreman’s role in the hiring of job applicants, noting that the foreman not only began the hiring process of these individuals, but also conducted informal interviews with the job applicants before they were hired. One judge, dissenting, took issue with the majority’s broad interpretation of supervisory authority, explaining that the foreman could not become a supervisor by “merely recommending a family friend for hire.” NLRB v. Missouri Red Quarries, Inc.

The U.S. Court of Appeals for the District of Columbia enforced the NLRB’s determination that Minteq International Inc. unlawfully required workers to sign noncompetition agreements before giving the IUOE Local 150 the opportunity to bargain about the requirement. The noncompetition agreements at issue not only prohibited employees from working for competitors for a period of 18 months after leaving the company, but also prohibited employees from interfering with the company’s business relationships during those 18 months. The D.C. Circuit reasoned that the noncompetition agreements had a direct economic impact on the employees’ future opportunities and thus, the company had a duty to bargain about them with the union. The court also concluded that the company’s prohibition of “interference” with its business relationships was overbroad as it could be interpreted as prohibiting employees from soliciting customer support during a labor dispute. Minteq Int’l, Inc. v. NLRB.

The D.C. Circuit refused to enforce an arbitration award that required Amtrak to reinstate an employee who had been fired for misconduct following an Amtrak Office of Inspector General’s investigation. The arbitrator had ruled the employee’s discharge was not supported by just cause because the investigator neglected to abide by union contract procedures that protect workers accused of wrongdoing. However, the D.C. Circuit disagreed, finding that the arbitration award was contrary to public policy because of existing precedent that forbids collective bargaining agreements from regulating an Inspector General’s investigatory authority. Nat’l R.R. Passenger Corp. v. Fraternal Order of Police, Lodge 189.

A D.C. Circuit panel affirmed the NLRB’s decision that Allied Aviation Services Company of New Jersey (Allied)—a commercial airline fuel service provider—violated the NLRA by failing to recognize and bargain with Teamsters Local 553. The dispute arose when Allied refused to negotiate with a group of its employees, located at Newark Liberty International Airport, who sought representation by the union. Allied argued that the Board lacked jurisdiction over the company because it was a “common carrier” under the Railway Labor Act (RLA), and therefore subject to the National Mediation Board (NMB)—the agency responsible for administering the RLA. In analyzing Allied’s argument, the D.C. Circuit looked to the Board’s application of the two-part “function and control” test used by the NMB to determine whether an employer that is not itself a carrier is nevertheless sufficiently controlled by a carrier to be subject to RLA jurisdiction. After reviewing the Board’s analysis, the D.C. Circuit panel held that the Board’s determination that Allied had failed to establish the ‘control’ portion of the “function and control” test was “legally correct and supported by substantial evidence.” According to the court, Allied failed to demonstrate a variety of factors that signified “control,” including: 1) that it was under contract with any common carrier; 2) that the carriers at Newark Airport publically held out Allied employees as their own employees; 3) that the carriers exercised control over how Allied ran its operations; 4) that the carriers supervised Allied employees to a degree sufficient to establish control; and 5) that the carriers exerted meaningful control over Allied’s personnel decisions. The D.C. Circuit panel also summarily rejected Allied’s argument that Noel Canning v. NLRB—the Supreme Court decision that invalidated two recess NLRB appointments that former President Obama made in 2012—vitiated all Board proceedings against it. Instead, the court reasoned that because a Board panel comprised of legitimate members had previously certified union representation in 2013, the Board effectively ratified the 2012 panel’s decision, and thereby remedied the Noel Canning defect. Allied Aviation Servs. Co. of New Jersey v. NLRB.

A Washington D.C. Circuit panel reversed the NLRB’s ruling that the Bellagio hotel violated a bellhop’s Weingarten rights, retaliating against him for invoking those rights and unlawfully prohibiting him from discussing the incident with his co-workers. The case arose after the employee’s supervisors attempted to interview the employee regarding a customer complaint. When the employee requested that a union representative be present at the interview, the Bellagio attempted to fulfill his request, however, no union representative could be found. The Bellagio then asked the employee to fill out and sign a written statement. When he refused, the Bellagio put the employee on suspension pending investigation. The following day, Bellagio officials, the employee, and a union representative met; the employee filled out a written statement and he received a written warning. In its decision, the D.C. Circuit panel held that the Bellagio respected the employee’s Weingarten rights by offering him the choice between participating in an interview without a union representative, or not having an interview at all. Bellagio LLC v. NLRB.

The Second Circuit upheld an NLRB decision that a catering company violated the NLRA when it fired an employee for posting a vulgar rant about his supervisor, and his supervisor’s family, on the employee’s public Facebook page. In its decision, the Second Circuit noted that the company had previously tolerated offensive language in the workplace, and that the employee’s outburst did not occur in the immediate presence of customers. Accordingly, the court reasoned that while the employee’s Facebook post was “distasteful,” it was not egregious enough to forfeit the protection of the NLRA. NLRB v. Pier Sixty, LLC.

A federal judge for the District of Columbia confirmed an arbitration award ordering the Washington Metropolitan Area Transit Authority (WMATA) to rehire a union-represented maintenance worker, who falsely represented to the WMATA that he had conducted monthly preventative maintenance inspections on a tunnel fan, which later malfunctioned during an incident that resulted in the death of one passenger and the hospitalization of others. In his decision, the judge first reiterated that he was bound to the common-law standard of deference to arbitral awards. The judge then reasoned that because the arbitrators’ decision to vacate the maintenance worker’s termination in favor of a six-month unpaid suspension neither ran afoul of the collective bargaining agreement, nor was arbitrary or capricious, he had no other option but to grant the union’s motion to confirm the award. Loc. 689, Amalgamated Transit Union v. Washington Metro. Area Transit Auth.

A federal judge for the Western District of Washington enjoined enforcement of a Seattle ordinance that provides a mechanism through which for-hire drivers can collectively bargain with companies that hire, contract, and/or partner with them. Pursuant to the ordinance, Teamsters Local 117 gave notice to 12 for-hire driver companies, giving them until April 3, 2017 to provide the union with the drivers’ names, contact information, and license numbers so that the union could solicit the drivers to participate in collective representation by the Teamsters. As a result, the U.S. Chamber of Commerce—which represents its members Eastside for Hire, Inc., Lyft, Inc., and Uber Technologies, Inc.—sought to enjoin enforcement of the ordinance, alleging that the ordinance is preempted by federal antitrust law and the NLRA. Granting the preliminary injunction, the judge concluded that “the public will be well-served by maintaining the status quo while the issues are given careful judicial consideration as to whether the City’s well-meaning Ordinance can survive the scrutiny our laws require.” U.S. Chamber of Commerce v. City of Seattle.

An NLRB Administrative Law Judge (ALJ) found that T-Mobile USA, Inc. violated the NLRA’s prohibition against establishing and maintaining a company-controlled labor organization. Accordingly, the ALJ held that T-Mobile’s labor organization—T-Voice—must be disestablished. The T-Voice program was established by T-Mobile in June of 2015 in an effort to address employees’ perceived problems and complaints. T-Mobile USA, Inc.

The NLRB, in an unpublished ruling that was part of a settlement agreement, ordered Bridgestone Americas Tire Operations, LLC to cease and desist from unilaterally turning on surveillance cameras at its La Vergne, Tenn. tire manufacturing facility without affording the local chapter of the USW notice and an opportunity to bargain about the matter. The NLRB further ordered Bridgestone to turn off the surveillance cameras, and to post a notice to its employees at the facility. Bridgestone Americas Tire Operations, LLC.

The NLRB vacated the results of a union representation election and ordered a second election in a case where it found that voting employees were not properly notified that they were voting to be added to an existing unit currently represented by the union, rather than voting to be represented by their own unit. The NLRB also ordered the Region to send voters a Notice of Election that contained the appropriate self-determination language. Cytec Process Materials (CA) Inc./Source One Staffing LLC.

An NLRB ALJ held that a health supplement company unlawfully discharged its entire sales department for protected concerted activities. The ALJ rejected the employer’s argument that the ousting was the result of both financial considerations and the fact that the department would soon be without supervision. Rather, the ALJ found that the employer closed the sales department because it had become aware that its sales department employees were considering filing a lawsuit against the company. The ALJ also explained that at the time the discharges occurred, the company had “had concrete plans to reopen the department within a very short time and the intention to staff it with employees who . . . would not threaten lawsuits, be ‘negative’ toward the Company or complain about terms and conditions of employment.” Furthermore, the ALJ noted that mere days after the closure of the department, the employer already had a new sales team in place, and later continued to rehire additional former sales department employees. Accordingly, the ALJ found the employer’s stated reasons for closing the sales department to be pretextual, and ordered all fired workers be given back pay and be reinstated to their former jobs, or to substantially equivalent positions. Natural Life Inc. d/b/a Heart and Weight Inst.

The NLRB held that it would assert jurisdiction over Saint Xavier University’s housekeeping employees, thereby adopting the position that the NLRB has jurisdiction over nonteaching employees of religious institutions or nonprofit religious organizations, unless the employees’ actual duties and responsibilities required them to perform a specific role in fulfilling the religious mission of the institution. The NLRB majority explained that its decision merely reaffirmed the Board’s longstanding precedent that the holding of Catholic Bishop is limited to those teaching employees of religious schools who “play a critical and unique role in creating and sustaining religious environment.” Acting Chairman Miscimarra dissented, maintaining that the majority’s decision to accept jurisdiction “impermissibly risks entangling the Board in matters of religion.” Saint Xavier Univ.

The NLRB affirmed an ALJ’s finding that a Wisconsin-based diesel engine manufacturer violated Section 8(a)(5) of the NLRA by failing to give the United Electrical, Radio and Machine Workers of America (UE) Local 1103 an opportunity to bargain over the effects of the employer’s decision to lay off 12 employees. After the NLRB initially issued a ruling affirming the ALJ’s opinion, the employer filed a petition for review in the D.C. Circuit, claiming that the ALJ had used the wrong standard in determining whether the company was required to bargain with the union. According to the company, the ALJ should have applied the “contract coverage” theory instead of the “clear and mistakable waiver” standard because the company’s employee handbook included a provision that covered employee layoffs. Recognizing that it had overlooked the issue of whether the ALJ applied the correct legal standard, the Board moved the D.C. Circuit to remand the case. The D.C. Circuit remanded the case, and the Board vacated its original decision. In its new decision, the NLRB found that the company violated the NLRA regardless of whether the “clear and unmistakable waiver” or “contract coverage” standard applied. The Board emphasized that the company and the union had never entered into a collective-bargaining agreement addressing the subject of layoffs, and that the handbook at issue was “unilaterally implemented” by the company when it assumed operations over its predecessor. Accordingly, the Board concluded that there was no judicial authority supporting the company’s proposition that the “contract coverage” standard could apply in the absence of a negotiated contract. Tramont Mfg., LLC.

A Regional Director (RD) for the NLRB’s Boston office found that New Hampshire-area distributors for the food distribution company Bimbo Foods Bakeries Distribution LLC (Bimbo) were independent contractors and therefore could not unionize with Teamsters Local 633 of New Hampshire. In applying the NLRB’s 10 factor test to determine whether the distributors were employees or independent contractors, the RD focused on Bimbo’s lack of control over the distributors. According to the RD, the distributors had complete control over how to meet Bimbo’s required “results,” which necessitated the distributors to decide how much product to order, how often to order the product, and how much product to sell or deliver to customers. Furthermore, the distributors set their own hours and overall schedules, and were permitted to complete their route themselves or with the help of others. While the RD did find that a few factors weighed in favor of the distributors being classified as employees—i.e., the low level of skill required to be a distributor, the long period of time in which the workers are employed, and the fact that the distributors’ work was an indispensable part of Bimbo’s business—he ultimately concluded that these factors were outweighed by those factors indicating the presence of an independent contractor relationship. Bimbo Foods Bakeries Distrib. LLC.

The RD of the NLRB’s Baltimore office ordered a union election at the Council on American-Islamic Relations (CAIR) after holding that CAIR was a secular organization, and therefore fell under the jurisdiction of the NLRB. The RD reasoned that CAIR failed to present sufficient evidence that it holds itself out as a religious organization—as required by the NLRB’s 2014 Pacific Lutheran University decision—because CAIR advocated for the civil rights of both Muslims and non-Muslims alike and was “not engaged in the business of converting individuals to the Islamic faith, holding religious services or performing a core function necessary to the function of any religion.” CAIR-Found., Inc. d/b/a Council on American-Islamic Relations.

The NLRB affirmed an RD’s decision to deny an employer’s request for a hearing to determine whether alleged threats made by union supporters swayed an election at an XPO Logistics Freight Inc. facility, and therefore warranted vacatur of the union election results. The employer’s request arose after a unit of drivers narrowly voted to unionize. In its request for a hearing, the employer alleged that the Teamsters and its supporters harassed employees at both the entrance and exit of the facility. The employer also provided the names of eight employees who would testify that they were repeatedly harassed by the Teamsters and its supporters at both the employer’s facility and at their homes. In addition, the employer provided the name of one employee who would testify that he was intimidated by a named union supporter attempting to influence the election. In its decision, the Board explained that the evidence the employer presented in support of its request for a hearing failed to: 1) identify the union supporters who threatened employees; 2) specify the objectionable statements that the union supporters made; and 3) provide proof that the alleged conduct was attributable to an agent of the union. Accordingly, the Board reiterated that “a hearing is not warranted so that [the employer] can subpoena evidence in an effort to uncover conduct that it has failed to sufficiently allege.” Further, the Board explained that even if the alleged conduct by union supporters was proven, it would be insufficient to create the atmosphere of fear and reprisal necessary to warrant setting aside the election. Acting Chairman Miscimarra dissented, arguing that the employer “need not present a voluminous narrative to warrant a hearing,” and that the employer’s identification of the witnesses, along with a summary of their expected testimony, was sufficient. XPO Logistics Freight, Inc.

The NLRB vacated an RD’s determination that buyers at a Kansas nuclear power plant were not managerial employees, and therefore, were allowed to hold a union representation vote. The Board held that the RD ignored a previous RD decision holding that buyers at the same nuclear power plant were managerial employees, not statutory employees, and therefore did not fall under the purview of the NLRA. While the RD had acknowledged the 2000 decision in his opinion, he ultimately held that because the Board did not make an official or final ruling on the issue, “the 2000 decision does not rise to the level of a final decision, and res judicata does not preclude the [Regional Office] from revisiting the status of the petitioned for employees.” The Board rejected this reasoning, explaining that an RD’s decision, even where review is not requested or denied, is final. Accordingly, the Board held that the 2000 decision would have a preclusive effect on the proceeding at hand “unless the party seeking relitigation of the previously decided issue satisfies its burden of presenting new factual circumstances that would vitiate the preclusive effect of the earlier ruling.” NLRB member Mark Gaston Pearce dissented, arguing that the nuclear power plant failed to establish its affirmative defense of res judicata because the managerial employees’ circumstances have changed since the 2000 decision. Wolf Creek Nuclear Operating Corp.

The NLRB affirmed an ALJ’s ruling that Aston Waikiki Beach Hotel in Hawaii violated the NLRA by unlawfully attempting to thwart a union campaign. Specifically, the ALJ found that the hotel’s Vice President of Operations violated Section 8(a)(1) of the Act by telling employees: 1) to stop the rallies or they would lose work; 2) to stop bothering their coworkers about the Union at home or the police would get involved; 3) that they were lucky to have jobs; and 4) that they were welcome to apologize to him. While the hotel took issue with the ALJ’s credibility findings, the Board refused to intervene, stating that its “established policy is not to overrule an [ALJ’s] credibility resolutions unless the clear preponderance of all relevant evidence convinces us that they are incorrect.” Although the Board found no basis for reversing the ALJ’s findings, the Board amended the ALJ’s cease-and-desist order by inserting language forbidding the hotel from “threatening employees with unspecified reprisal for handbilling in nonwork areas” and making changes to the notice requirements. Aqua-Aston Hosp., LLC, d/b/a Aston Waikiki Beach Hotel and Hotel Renew.

The NLRB set aside election results after finding that an auto parts distributor violated the NLRA by giving its drivers and warehouse employees the impression that they would receive wage increases if they voted against union representation. While the Board found that the employer’s presentation to employees at two of its facilities, in anticipation of the election, expressly stated that the company was not making any promises about wages, the Board maintained that the company made verbal statements that “crossed the line into objectionable conduct.” Such objectionable verbal statements included: 1) informing its employees at these facilities that employees at another facility recently received a wage increase of 12.45 percent after voting against union representation; and 2) stating that if the union won the election at these facilities then a pay raise would take a “whole lot longer,” would involve a “long drawn-out process” that could take “forever,” and that there was a “really big chance” that employees might not get a raise at all, or end up losing money. The Board concluded that the company did not merely make statements of historical fact or accurate representations of the collective-bargaining process, but instead, conveyed an obvious link between the rejection of union representation by employees and the increase of wages. In dissent, Acting Chairman Miscimarra argued that the company expressly stated that it was not promising wage increases, and that the company made clear that it would evaluate potential wage increases in the same manner regardless of the result of the election. Keystone Auto. Indus., Inc.

The NLRB declined to review the entirety of an RD’s finding of jurisdiction over adjunct professors at Duquesne University. Instead, the NLRB merely reviewed whether the RD’s inclusion of the university’s adjunct theology faculty in the unit was appropriate. In its decision, the NLRB held that the part-time adjunct faculty in the university’s theology department “perform[ed] a specific role in maintaining the University’s religious educational environment” and that “the performance of their responsibilities would require furtherance of the University’s religious meaning.” Accordingly, the Board excluded the part-time theology adjunct faculty from the bargaining unit, and remanded the case to the RD in order to issue a certification allowing the USW to represent the rest of the university’s adjuncts. Acting Chairman Miscimarra dissented, opining that he would review the RD’s finding of jurisdiction in its entirety because there existed a substantial issue regarding whether the Board lacked jurisdiction over the entire petitioned-for unit. Miscimarra first explained that the majority’s distinction between faculty who taught courses with “religious content” and the other petitioned-for unit faculty was prohibited by the U.S. Supreme Court decision NLRB v. Catholic Bishop of Chicago, because the “‘very process of inquiry’ associated with this type of evaluation raises First Amendment concerns.” He then reasoned that in accordance with his dissent in Pacific Lutheran University, that the Board should have applied the three-part test espoused by the D.C. Circuit in University of Great Falls v. NLRB when determining whether a religious university is exempt from the NLRA due to First Amendment considerations. Finally, Miscimarra maintained that even if one applied Pacific Lutheran to the facts at hand, there remained a substantial question as to whether all part-time adjunct faculty, regardless of the department, played a specific role in creating or maintaining the university’s religious educational environment. Duquesne Univ. of the Holy Spirit.

The NLRB ruled that all adjunct professors at Manhattan College, with the exception of those within the religious studies department, were permitted to unionize regardless of the college’s status as a religiously affiliated institution. With regard to those adjunct professors in the religious studies department, the Board reasoned that the college held out those faculty members as performing a specific role in maintaining the college’s religious educational environment. Acting Chairman Miscimarra dissented, finding that there was a substantial issue regarding whether the Board lacked jurisdiction over the entire petitioned-for unit. In dissent, Miscimarra made similar arguments to those described in the above summary regarding Duquesne Univ. of the Holy Spirit. Manhattan Coll.

• The NLRB held that an Indiana trucking company violated the NLRA by refusing to release information about its ownership, locations of operations, and its trucks to the Teamsters Joint Council 69 during a strike. The Board determined that because the union had a reasonable and objective basis for believing that an alter-ego relationship existed between the trucking company and other entities, the union was entitled to ascertain information about the company that would help the union determine appropriate picketing locations. NLRB Chair Miscimarra dissented, arguing the union requested information that was irrelevant to the employees it represented. Diamond Trucking, Inc.

The NLRB’s Baltimore Regional Acting Director ruled that resident advisors at George Washington University were employees, and therefore permitted to unionize. Applying the test promulgated by Columbia University, the Acting Director first determined that the resident advisors provided services for the university in exchange for value—namely the $12,500 in waived housing expenses, and a $2,500 stipend. The Acting Director then reasoned that the university exerted extensive control over the resident advisors by dictating their activities and their relationships with the students, and giving the resident advisors little discretion in the “administrative, training or emergency response duties . . . associated with the position.” Accordingly, the Acting Director found that the resident advisors had attained employee status and were therefore eligible to vote in a union election.

An NLRB ALJ held that an AT&T Mobility LLC policy that prohibited its workers from recording telephone or other conversations with their co-workers, managers and/or third parties was overbroad and thus unlawful. While the ALJ acknowledged that the AT&T Inc. subsidiary was permitted to prohibit its workers from recording or sharing its customers’ information, the subsidiary could not prohibit its workers from recording their conversations altogether. The ALJ took particular issue with the fact that the policy was not limited to conversations occurring during working hours and/or in work areas, nor to conversations taking place on the subsidiary’s premises. AT&T Mobility, LLC.

The NLRB’s Atlanta RD dismissed a petition to determine whether employees of an Enterprise Holdings, Inc. car rental subsidiary remained interested in union representation by Teamsters Local 391. In his ruling, the RD maintained that the NLRB’s one-year certification rule barred petitions challenging union certification that are filed within a year of the union’s certification. Accordingly, the RD reasoned that because the certification year commenced less than one year before, on the date that the parties began contract negotiations, the petition must be dismissed. The RD also rejected Enterprise’s argument that the union engaged in “inexcusable delay” by neglecting to assign a new organizer to oversee the bargaining unit, instead finding that the delay occurred because the union did not learn about the Fourth Circuit’s ruling that Enterprise violated the NLRA by refusing to bargain with the union until six months after the case was decided. According to the RD, while the union “may have taken more affirmative steps to stay apprised of the litigation, its failure to do [was] excusable.” Enterprise Leasing Co. Se. – LLC.

An NLRB ALJ held a New York based restaurant chain violated the NLRA by firing employees who replied in support of another employee’s resignation email that criticized management. The dispute arose after an employee sent a resignation email to the company’s owners, her general manager, and other employees, airing her grievances against the general manager. Four employees subsequently replied to the email and also complained about the manager’s treatment of employees, among other things. The next day, the company fired those four employees. The ALJ reasoned that the employees did not lose the protection of the NLRA by agreeing with the email, and therefore, the company unlawfully terminated them for engaging in concerted activity. Mexican Radio Corp.

An NLRB ALJ found that a California nursing facility violated the NLRA by firing five employees, shortly before a union representation election, under the guise that they were terminated for sleeping at work. The ALJ reasoned that because the employer had imposed lesser punishments on employees who had engaged in more serious misconduct, there was sufficient evidence to demonstrate that the workers were fired for their participation in union activity. Novato Healthcare Ctr.

An NLRB ALJ held that members of the International Alliance of Theatrical Stage Employees (IATSE) Local 63 violated the NLRA by maintaining an exclusive hiring hall that had separate member and nonmember referral lists for employment, granted priority to its members for job referrals to employers, refused to refer nonmembers to employers, and removed a non-member from its out-of-work list and refused to refer him to work at any employer. IATSE, Local 62 (Shepard Exposition Servs., Inc.).

The National Federation of Independent Businesses filed a notice of voluntary dismissal in its case against the Occupational Safety and Health Administration (OSHA) after OSHA rescinded its 2013 interpretation letter, which stated that OSHA had to right to invite union advocates to its inspections of non-union worksites. Nat’l Fed’n of Indep. Bus. v. Dougherty.

Legislation & Politics

Representative Bradley Bryne (R-Ala.), Chairman of the House Workforce Protections Subcommittee, sent a letter to the House Appropriations Committee, asking it to address “troubling initiatives” by the NLRB that “overturn decades of well-settled law and together would upset the historic and appropriate balance between employer and employee rights under the National Labor Relations Act (NLRA).” Nearly 50 Representatives signed the letter. The first issue the letter urged the Appropriations Committee to address in its FY 2018 Labor, Health and Human Services, Education and Related Agencies Appropriations Bill was the NLRB’s decision to overturn the traditional joint employer standard in Browning-Ferris Industries. The letter also encouraged the Appropriations Committee to address the NLRB’s ambush elections rule, a rule that shortens the time between the filing of a certification petition and the actual conducting of an NLRB secret ballot election. According to the letter, the rule drastically alters election procedures, severely restricts an employer’s ability to provide employees with the resources they need to come to an informed decision prior to a union election, limits due process rights, and violates employee privacy rights. The letter also highlighted the NLRB’s decision in Specialty Healthcare and Rehabilitation Center of Mobile, stating that the decision “fundamentally alters organizing rules by permitting unions to gerrymander bargaining units.” Of particular concern to the Representatives was the potential burden the decision imposed upon employers by requiring employers to manage multiple bargaining units of similarly situated employees.

New York Governor Andrew Cuomo signed a bill that will make union dues and agency shop fees fully tax deductible. The bill also provides $160 million in funding for wage increases for direct care workers in private human service organizations that come under the purview of the state’s Office of Mental Health, Office for People with Developmental Disabilities, and Office of Alcoholism and Substance Abuse Services. The funding will go into effect over a two-year period and will result in an average wage increase of 3.25 percent per year. The bill also contains a provision that requires real estate developers to pay prevailing wages to construction and building service workers in order to receive a tax break. In addition, the bill alters the state’s current workers’ compensation system by establishing a 2.5-year limit on benefits for injured workers who receive temporary benefits, while providing exceptions to those injured workers who need to continue receiving temporary benefits beyond the 2.5-year limit. According to state representatives, the cap will save employers an estimated $350 million per year. The bill also aids injured workers who will now receive extended benefits if they are at least 75 percent disabled, as compared to the current law, which requires 80 percent disability to receive extended benefits.

The Texas Senate passed a bill that requires workers under the age of 18 to receive parental consent before they are permitted to join a union. The bill is currently awaiting review in the Texas House.

Missouri Governor Jay Nixon (D) is expected to sign a bill that prohibits state and local governments from requiring bidders on public projects to use union labor or pay union wages, and forbids union contractors from receiving preferential treatment. Under the bill, local governments who violate the law would face state funding cuts. If enacted, the bill would not only give the state attorney general and local prosecutors enforcement authority, but it would also provide a private right of action for wrongly excluded contractors to pursue damages.

President Trump announced his intent to designate current NLRB Acting Chairman Philip A. Miscimarra to the position of NLRB Chairman and re-nominate Occupational Safety and Health Review Commission Acting Chair Heather L. MacDougall for another term.

Crime, Corruption & Other Misdeeds

Raymond Ventrone, a former business manager of International Brotherhood of Boilermakers (IBB) Local 154 in Pittsburgh, was indicted for embezzling close to $1.5 million from the union during his five-year tenure. IBB Local 154 removed Ventrone from his position nearly two years ago, after the union became aware of his illegal financial transactions.

Two members of the Communications Workers of America (CWA) Local 1109 were found guilty by their union peers for illegally crossing a picket line during a strike at Verizon. The two members were fined $21,918.16 and $16, 971.74, respectively.

Miscellaneous

In a memo to the UFCW executive board and advisory committee members, UFCW President Marc Perrone, wrote that “it is demonstrably clear that we must organize harder, bargain better, and communicate our importance to our members and the community—now more than ever.” Perrone also reiterated that the union could not “accept these challenges and threats as a permissible status quo.” In a recent interview with Bloomberg BNA, Perrone outlined the UFCW’s new initiative to provide local union staffers with training on how to effectively communicate the benefits of union membership.

Newly-elected DNC Chairman Tom Perez reiterated the Democratic Party’s commitment to unions at the USW constitutional convention in Las Vegas. Perez encouraged union members to run for public office in an effort to fight against anti-labor legislation. Delegates at the USW convention also passed a resolution to focus efforts on helping its members get elected to public office. The resolution also included an initiative to create a nationwide program that prepares its members to run for public office. The USW expects the program to begin later this year.