Today’s Labor Updates:
Beijing High People’s Court issues new guiding opinion on employment disputes
Summary of NLRB Decisions for Week of July 14 – 18, 2014
Beijing High People’s Court issues new guiding opinion on employment disputes
Contributed by Baker & McKenzie
July 23 2014
In May 2014 the Beijing High People’s Court and the Beijing Municipal Employment Dispute Arbitration Committee jointly issued the Meeting Minutes (II) on the Application of Law in Employment Disputes. Although the meeting minutes are not officially binding, it is likely that the lower courts and arbitration panels in Beijing will follow the conclusions of the meeting minutes. The meeting minutes clarify some controversial employment issues often faced by employers, such as open-term employment contracts and double wage penalties.
Open-term employment contracts
Regarding open-term employment contract issues, the meeting minutes clarify that on expiration of a second fixed-term employment contract after January 1 2008, if the employee unilaterally demands renewal of the employment contract on an open-term basis, the employer must do so. This clarification is in line with the unofficial (yet longstanding) Beijing practice and the position taken by most courts in China (except those in Shanghai). In addition, the parties can sign a third fixed-term contract if the employee does not demand an open-term contract at the end of the second fixed term; however, on expiration of the third fixed-term contract, the employee again has the right to demand unilaterally an open-term employment contract.
Double wage penalties
Regarding the double wage penalty for not concluding a written employment contract with an employee, the meeting minutes clarify that the company’s legal representative and other senior management who are responsible for employment contract management generally cannot claim for double wages if the company fails to sign an employment contract with them.
Other issues
Additionally, the meeting minutes provide that arbitration committees and courts generally should not grant a female employee’s request to revoke a duly executed mutual termination agreement if she subsequently discovers that she was pregnant when the mutual termination agreement was executed. Likewise, an employee who resigns for personal reasons may not subsequently claim during arbitration or litigation proceedings to have terminated the employment contract because of the employer’s non-compliance with employment laws.
Summary of NLRB Decisions for Week of July 14 – 18, 2014
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decisions
UniFirst Corporation (06-RD-097418; 361 NLRB No. 1) New Kensington, PA, July 15, 2014.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the hearing officer’s findings and recommendations to sustain objections to an election, which alleged that the Employer engaged in objectionable conduct by promising employees 401(k) and profit-sharing plans if they decertified the Union. The majority found it unnecessary to pass on the hearing officer’s additional finding that that the Employer also engaged in objectionable conduct by stating that the employees’ existing pensions would be frozen if the Union was decertified, as that statement was not alleged to be objectionable. The hearing officer, without waiting for the resolution of a determinative number of challenged ballots, recommended setting aside the election and holding a second election on some date after the resolution of the grievances underlying the challenged ballots. Contrary to the hearing officer, the Board majority stated that the proper procedure is to resolve the status of the challenged ballots before determining whether the election should be set aside. The Board, therefore, remanded the case to the Regional Director for further appropriate action. Member Johnson, dissenting, stated that the Employer did no more than truthfully describe to employees the benefits it currently made available to its unrepresented employees and he, therefore, would not find the Employer’s conduct to be objectionable. Accordingly, after the challenged ballots are resolved, Member Johnson would issue an appropriate certification. Petitioner – an individual. Chairman Pearce and Members Hirozawa and Johnson participated.
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Key Handling Systems, Inc. (22-CA-105632; 361 NLRB No. 2) Moonachie, NJ, July 15, 2014.
The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of an informal settlement agreement. The Board found that the Respondent failed to comply with the terms of the settlement agreement, and accordingly deemed all of the allegations in the reissued complaint to be true and ordered appropriate remedies. Finding that the Respondent violated Section 8(a)(5) and (1) of the Act by ceasing to honor and comply with the terms and conditions of its collective-bargaining agreement with the Union by failing to make payments to certain unit employees with respect to their unused sick leave and vacation leave, the Board ordered the Respondent to cease and desist and to make the unit employees whole for any loss of earnings and other benefits attributable to its unlawful conduct. In addition, the Board ordered the Respondent to reimburse the unit employees in an amount equal to the differences in taxes owed upon receipt of a lump-sum backpay payment and taxes that would have been owed had the Respondent not violated Section 8(a)(5) and (1). The Board also ordered the Respondent to submit the appropriate documentation to the Social Security Administration so that when backpay is paid, it will be allocated to the appropriate calendar quarters. Charge filed by UFCW Local 1245, United Food and Commercial Workers, AFL-CIO Chairman Pearce and Members Miscimarra and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Savage Transportation Management, Inc. (27-RC-126023) Green River, WO, July 15, 2014. No exceptions having been filed to the Regional Director’s overruling of objections to an election held May 14-15, 2014, the Board adopted the Regional Director’s findings and recommendations, and certified Petitioner United Steelworkers AFL-CIO-CLC as the exclusive collective-bargaining representative of the employees in the appropriate unit.
Positive Connections, Inc. (13-RC-126852) Markham, IL, July 16, 2014. No exceptions having been filed to the Regional Director’s overruling of objections to an election held May 23, 2014, the Board adopted his findings and recommendations, and certified that a majority of ballots had not been cast for Petitioner International Brotherhood of Teamsters, Local Union No. 777, and that it is not the exclusive collective-bargaining representative of the bargaining unit employees.
Pilot Travel Centers, LLC, d/b/a Pilot Flying J (22-RC-128749) Bloomsbury, NJ, July 18, 2014. Order denying the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election. In denying review, the Board noted that the Food Service Leader III classification was the only classification at issue. The Board agreed with the Acting Regional Director’s rejection of the Employer’s contention that Food Service Leader IIIs are statutory supervisors because of their role in evaluating team members. Member Miscimarra stated that he believes the Acting Regional Director defined too narrowly the standard for evaluating accountability (part of the analysis regarding whether a Food Service Leader III engages in responsible direction), see Community Education Centers, Inc., 360 NLRB No. 17, slip op. at 2 (2014) (Mbr. Miscimarra, dissenting in part), but he agreed that the record fails to establish that employees in that position satisfy the requirements of accountability and responsible direction for purposes of supervisory status under Sec. 2(11).Petitioner—Local 108, Retail, Wholesale & Department Store Union, United Food & Commercial Workers. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
Laborers International Union of North America, Local 265 (Henkels & McCoy, Inc.) (09-CD-116000) Cincinnati, OH, July 14, 2014. Order denying Operating Engineers Local 18’s motion for reconsideration of the Board’s May 5, 2014 Decision and Determination of Dispute, which found that employees represented by Laborers Local 265 are entitled to perform the disputed service line work utilizing a miniexcavator and skid steers by the Charging Party Employer’s service line crews working on the Duke Energy project in the Cincinnati, Ohio area. The Board also denied the Operating Engineers Local 18’s motion to reopen the record. Charge filed by Henkels & McCoy, Inc. Chairman Pearce and Members Johnson and Schiffer participated.
Nandorf, Inc., owned and operated by Savers Inc., d/b/a Unique Thrift Store (13-CA-122675) Chicago, IL, July 14, 2014. Order denying the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. With respect to the attorney-client privilege and the attorney work product doctrine issues raised by the Employer, the Board observed that the subpoena on its face does not seek any documents protected by privilege; rather, the subpoena instructions provide that if the Employer refuses to produce any documents, it should identify and provide certain information about those documents. Thus, to the extent that the subpoena encompasses some documents that the Employer believes in good faith to be protected from disclosure, the Board stated that the Employer may submit a privilege log providing sufficient detail to permit an assessment by the Region of the Employer’s claims. Accordingly, the Board found no grounds for revocation of the subpoena in this regard, and further found that to the extent that the parties are ultimately seeking a determination of whether the asserted attorney client privilege and attorney work product doctrine in fact apply to certain documents, that issue is not properly raised in this petition to revoke the subpoena. Charge filed by Chicago and Midwest Regional Joint Board Workers United/SEIU. Chairman Pearce and Members Miscimarra and Schiffer participated.
Coastal Sunbelt Produce, Inc. (05-CA-121498, et al.) Savage, MD, July 15, 2014. Order denying the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. In addition, the Board noted that, to the extent that the Employer has provided some of the requested material, it is not required to produce that information again, provided that the Employer accurately describes which documents under subpoena it has already provided, states whether those previously-supplied documents constitute all of the requested documents, and provides all of the information that was subpoenaed. Charges filed by individuals. Chairman Pearce and Members Miscimarra and Schiffer participated.
Bozzuto’s, Inc. (01-CA-115298) Cheshire, CT, July 15, 2014. Order denying the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by United Food and Commercial Workers Union, Local 919. Chairman Pearce and Members Miscimarra and Schiffer participated.
Hanson Aggregates BMC, Inc. (04-CA-102497 and 104307) Penns Park, PA, July 15, 2014. The Board denied the Charging Party Union’s motion for reconsideration of the Board’s June 11, 2014 Decision and Order approving a formal settlement stipulation between the Respondent Employer and the General Counsel, and specifying actions the Employer must take to comply with the National Labor Relations Act. The Charging Party Union had objected to the settlement. Charges filed by International Union of Operating Engineers, Local 542, AFL-CIO. Chairman Pearce and Members Johnson and Schiffer participated.
Century Fast Foods, Inc. (31-CA-116102) Los Angeles, CA, July 15, 2014. The Board denied the Respondent’s Motion for Summary Judgment, on the grounds that the Respondent failed to establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.
3rd Avenue Transit, Inc. and Jofaz Transportation Inc. (02-CA-088984) Bronx, NY, July 15, 2014. The Board denied the Charging Party Union’s Request for Special Permission to Appeal from the Administrative Law Judge’s approval of the November 20, 2013 informal settlement agreement entered into by the Respondents and the General Counsel. Charge filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO. Chairman Pearce and Members Miscimarra and Schiffer participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Fuji Food Products, Inc. (21-CA-095997; JD(SF)-34-14) Santa Fe Springs, CA. Administrative Law Judge Jeffrey D. Wedekind issued his decision on July 15, 2014. Charge filed by an individual.
Southern Bakeries, LLC (15-CA-101311, et al.; JD(ATL)-21-14) Hope, AR. Administrative Law Judge Robert A. Ringler issued his decision on July 17, 2014. Charges filed by Bakery, Confectionary, Tobacco and Grain Millers Union, Local 111.
Staffing Network Holdings, LLC (13-CA-105031; JD-41-14) Itasca, IL. Administrative Law Judge Melissa M. Olivero issued her decision on July 17, 2014. Charge filed by an individual.
Capital Medical Center (19-CA-105724; JD(SF)-35-14) Olympia, WA. Administrative Law Judge Eleanor Laws issued her decision July 17, 2014. Charge filed by UFCW Local 21.