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Labor Relations News Update October 25, 2013

China: Court dismisses evidence obtained from employee’s work email

China’s Reforms Leave Labor Unions Behind

“Alleged clothes,” “things of value,” and “recess appointments”: what’s in “store” in the new Supreme Court term

Brazil oil workers call off strike

Summary of NLRB Decisions for Week of October 7 – 11, 2013

Summary of NLRB Decisions for Week of October 15 – 18, 2013



China: Court dismisses evidence obtained from employee’s work email

Contributed by Baker & McKenzie

October 23 2013

The Guangdong Foshan Intermediate People’s Court recently ruled in a termination case that evidence taken from an employee’s work email was inadmissible.

The company in question conducted an investigation of the employee by checking his work email without informing him. The company then alleged that the employee had seriously violated the company’s rules and regulations, as the investigation indicated that the employee had both disclosed the company’s business secrets to another company through email and sent pornographic images to colleagues through email, which the company defined as harassment. As a result, the company terminated its employment relationship with the employee. The employee claimed that he was illegally terminated and should be reinstated, and that the company should issue an apology to him and restore his reputation. The trial court ruled that the termination was unlawful, but dismissed the apology and reputation restoration claims. The Foshan Intermediate Court affirmed the judgment on appeal.

The employee had signed a code of ethics, which included a provision stating that “all the communication data and information you send or receive using the company’s facilities or property during employment are company property, rather than personal communication”, and that “the company reserves the right to monitor all the communications, including the use of Internet”. Based on this agreement, the company argued that email constituted company property, rather than employees’ private property.

Nevertheless, the court opined that every citizen is entitled to freedom of correspondence and this right cannot be deprived without due process. Although the email address included the company’s name and the messages in question were sent through the work email system, the company still violated the employee’s privacy, as the email account could be logged into only with a password set by the employee and was personally used by the employee. Therefore, the company had violated the employee’s rights by checking his email without his permission, and the evidence obtained in this way could not be admitted.

This case confirms that, even where company policies give the company the right to monitor work email, some courts may still hold that checking employees’ email without their consent violates their rights to privacy of correspondence, and that evidence obtained in this way potentially may not be admitted. Not all courts would necessarily support such an employee-friendly position. However, if the court’s position in this case becomes more widespread, it will create significant additional hurdles for employer investigations of potential misconduct.

For further information on this topic please contact Andreas Lauffs or Jonathan Isaacs at Baker & McKenzie’s Hong Kong office by telephone (+852 2846 1888), fax (+852 2845 0476) or email ( or


China’s Reforms Leave Labor Unions Behind

By  Tyler Roney

October 24, 2013

When addressing the 16th national congress of the All-China Federation of Trade Unions in Beijing on Monday, Chinese Premier Li Keqiang spoke about deepening and accelerating economic reforms as well as enhancing efforts to protect workers’ rights. Earlier, senior official Liu Yunshan previewed Li’s statement, saying that labor unions should play a greater role in protecting the working class.

But while economic hopes for reform in China are alive and well, trade unions, which for most countries are on the front lines of protecting workers’ rights, show few signs of opening up. Regarding the ACFTU meeting in Beijing, Geoffrey Crothall, spokesperson for the China Labor Bulletin, told The Diplomat: “It’s kind of what they say every time. I don’t think there’s anything new or noticeable in this latest conclave.”

China’s state-run media disagrees, hailing the meeting as a turning point in the country’s labor relations—complete with out-of-the-blue ACFTU success stories and parades of ethnic minorities decked out in traditional attire, happy to represent the workers of the motherland. As Liu Yunshan said, “The working class should become the role model of unity and progress, and vigorously promote the glorious tradition of unity, cooperation, mutual assistance and friendship.” As they piled into the Great Hall of the People late last week for photo ops, the glowering prospect of individual trade unions seemed no closer to becoming a reality.

The ACFTU is the largest union in the world, with Xinhua reporting over 280 million members; it’s also one of the weakest in representing their members, existing primarily to serve the CCP, convey its messages and policies to the workers, and spread the “mass line.” In fact, all other trade unions unaffiliated with the ACFTU are illegal. Crothall says, “At the factory of workplace level, most trade unions are basically controlled directly or indirectly by management and they don’t really represent workers’ interests.”

That said, as the country’s main and only legal labor union is government controlled, workers are stuck putting pressure directly on their employers—which often results in bad PR for the PRC.

There is no chance that the ACFTU is going to taper off or that the government is ever going to allow individual, unaffiliated trade unions on the mainland, but if workers on the ground can get mobilized, there is a bit of hope that the workers will be able to take matters into their own hands. Crothall says, “Rather than looking at what is happening in Beijing, we look at what’s happening on the factory floor, and there you can see some encouraging signs in terms of workers demanding better union representation.”

China’s labor movement has its share heroes and martyrs but few successes. At the moment, the 16th national congress of the ACFTU is little more than lip service, but the ACFTU can conceivably act outside of its master’s wishes. With China’s insistence on at least 7 percent GDP growth and labor costs rising, the big picture of China’s labor movement could change.

“Alleged clothes,” “things of value,” and “recess appointments”: what’s in “store” in the new Supreme Court term

Ogletree Deakins Hera S. Arsen USA October 18 2013

Last week started the 2013-2014 Term at the Supreme Court of the United States. While the hot issues last year were DOMA, Title VII (Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar), and class actions (for two years running with last term’s decisions including Genesis HealthCare Corp. et al. v. Symczyk, American Express Co. v. Italian Colors Restaurant, Oxford Health Plans LLC v. Sutter), the most high-profile cases of this term are in the wage and hour and traditional labor arenas. As you follow the Court’s activity this term, here is some information on the six cases that will have the most effect on how you run your company.

The Employment and Labor Law Docket

1.    Sandifer v. United States Steel Corporation. Does the Fair Labor Standards Act (FLSA) require employers to compensate employees for the time they spend putting on and taking off their work clothes in a locker room at the plant? The Supreme Court will answer this question in Sandifer v. United States Steel Corporation, which came out of the Seventh Circuit Court of Appeals. The case was brought on behalf of 800 former and current steelworkers in Gary, Indiana. And, the “alleged clothes” as the Seventh Circuit puts it, include flame-retardant pants and jackets, work gloves, steel-enforced work boots, hard hats, safety glasses, ear plugs, and a hood that covers the top of the head, chin, and neck. The Seventh Circuit ruled that the changing time was not compensable. The specific question the Court has agreed to hear is what constitutes “changing clothes” within the meaning of Section 203(o) of the FLSA. The Supreme Court will hear arguments in the case on November 4, 2013.

2.    National Labor Relations Board v. Noel Canning. The Noel Canning decision concerns the constitutionality of President Barack Obama’s recess appointments of Sharon Block, Terence F. Flynn, and Richard F. Griffin to the National Labor Relations Board (NLRB) on January 4, 2012. The president appointed theses three NLRB members pursuant to Article II, Section 2, Clause 3 of the U.S. Constitution—the “Recess Appointments Clause”—according to which the president is permitted “to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” The D.C. Circuit Court of Appeals found that these recess appointments were unconstitutional. The Supreme Court granted review of the case in order to evaluate the president’s recess appointment power and the validity of President Obama’s three appointments. In addition, the Court will decide whether the recess-appointment power may be exercised during a recess that occurs within a session of the Senate or is instead limited to recesses that occur between enumerated sessions of the Senate. Oral arguments in the case have not yet been scheduled.

3.    UNITE HERE Local 355 v. Mulhall. This case centers around the meaning of the phrase, “thing of value” under section 302 of the Labor-Management Relations Act (LMRA)—often known as the Taft-Hartley Act—which makes it unlawful for an employer to give or for a union to receive any “thing of value,” subject to limited exceptions. In the case, the employer and union entered into an agreement according to which the employer promised (1) to provide union representatives access to non-public work premises to organize employees during non-work hours; (2) to provide the union a list of employees, their job classifications, departments, and addresses; and (3) to remain neutral to the unionization of employees. The Eleventh Circuit Court of Appeals held that this type of organizing assistance can be a thing of value that, if demanded or given as payment, could constitute a violation of section 302. The Supreme Court agreed to hear the case to decide whether the employer and union violated section 302 by entering into their agreement.

4.    United States v. Quality Stores, Inc. The Supreme Court just recently agreed to hear this case on whether severance payments are taxable. The case is on appeal from the Sixth Circuit Court of Appeals, which considered a bankruptcy court’s ruling ordering refunds of tax payments collected under the Federal Insurance Contributions Act (FICA). The specific issue to be settled by the Court is whether severance payments are taxable under FICA when made to employees whose employment is involuntarily terminated.

5.    Heimeshoff v. Hartford Life & Accident Insurance Co. and Wal-Mart Stores, Inc. The only other employee benefits case currently pending at the Court is the Heimeshoff case, which takes up the issue of the precise statute of limitations within which an individual must challenge the denial of disability benefits. The Employee Retirement Income Security Act (ERISA) does not contain a specific limitations period within which individuals must bring a challenge to a denial of benefits. Instead, according to the Second Circuit Court of Appeals, the controlling limitations period on such claims comes from the “most nearly analogous state limitations statute.” The Supreme Court will thus settle the issue of when a statute of limitations should accrue for judicial review of a disability adverse benefit determination under ERISA. The Court heard oral arguments on October 15, so we may get this decision earlier in the Term.

6.    Madigan v. Levin. The Supreme Court heard oral arguments in Madigan v. Levin on the first day of its Term (October 7, 2013), and it was the first case it decided in the 2013-2014 Term. The Court dismissed the writ of certiorari in the age discrimination case as improvidently granted in a one-line order. The issue in the case, which came out of the Seventh Circuit Court of Appeals, was whether the Age Discrimination in Employment Act (ADEA) is the exclusive remedy for age discrimination claims brought by a former state assistant attorney general. The writing was on the wall in this case as soon as the Court heard arguments last week and Justice Stephen G. Breyer suggested that the Court dismiss the case as one that should not have been granted.


EFEOctober 24, 2013 13:32

Brazil oil workers call off strike

Rio de Janeiro, Oct 24 (EFE).- Most Brazilian oil workers have called off the strike they began a week ago to press demands for higher salaries and protest the auction of the deep-water Libra field.

The FUP union, which represents most employees of Brazilian state-controlled oil company Petrobras, said the strike was suspended in the states of Bahia, Minas Gerais, Amazonas, Parana, Santa Catarina and at some installations in Sao Paulo and Rio de Janeiro states.

Regional unions in the cities of Campos and Macae – the operational bases for offshore platforms in the Campos Basin, the country’s largest – were scheduled to meet Wednesday night to decide whether to resume work, according to a statement.

Unions located in the states of Ceara, Rio Grande do Sul, Pernambuco and Paraiba are “broadly” approving the salary hikes offered by Petrobras and will hold their assemblies on Thursday, the statement added.

Petrobras offered an 8.56 percent salary hike, as well as a bonus equivalent to a monthly salary and other education and health benefits.

Workers went on strike last Thursday to demand a pay raise and to protest the auction of Libra, Brazil’s largest oil field.

On Monday, the lone bidder in the auction, a consortium made up of Royal Dutch Shell, Total, Chinese oil companies CNOOC and CNPC and Petrobras, was awarded production rights to Libra.

Libra is one of a series of ultra-deep, “pre-salt” oil fields that were discovered in recent years and stretch for some 800 kilometers (500 miles) off the coasts of the southeastern states of Espirito Santo, Rio de Janeiro, Sao Paulo and Santa Catarina.

That new frontier, so-named because the fields are located under water, rocks and a shifting layer of salt at depths of up to 7,000 meters (22,950 feet) below the surface of the Atlantic, could dramatically increase Brazil’s proven-reserve tally and transform the country into a major crude exporter.

Petrobras will be the operator of Libra and hold a 40 percent stake.

The unions, however, slammed what they called Libra’s “privatization” and held protests near the Rio de Janeiro hotel where the auction – the first for a “pre-salt” field – took place.


Summary of NLRB Decisions for Week of October 7 – 11, 2013

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 or 202‑273‑1991.

Summarized Board Decisions

No published decisions.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

No unpublished decisions.


Appellate Court Decisions

Operative Plasterers and Cement Masons Int’l Ass’n, Local 200 (Standard Drywall, Inc.), Board Case No. 21-CD-659 (reported at 357 NLRB No. 160) and Board Case No. 21-CD-673 (reported at 357 NLRB No. 179) (9th Cir. decided October 7, 2013)

In two unpublished opinions in companion cases, the Court enforced the Board’s orders finding that the Operative Plasterers’ and Cement Masons’ International Association and Local 200 (“the Plasterers”) repeatedly violated Section 8(b)(4)(ii)(D) of the Act by pursuing work that the Board had awarded to a rival union in two Section 10(k) proceedings.

In 2002, Standard Drywall, Inc. (“SDI”) and the Southwest Regional Council of Carpenters entered into an agreement for plastering work covering 12 southern California counties.  Two years later, the Plasterers asserted a claim for the plastering work covered by the agreement, initially attempting to enforce its demand for work at one such jobsite through a state court lawsuit against SDI seeking to force it to use an apprenticeship program run by the Plasterers at public works projects throughout southern California.  Local 200’s demand for the jobs prompted a threat by the Carpenters to strike if SDI moved the work at the disputed jobsite.  SDI filed a charge with the Board alleging that the strike threat violated Section 8(b)(4)(ii)(D), which prohibits unions from striking to reassign work unless the employer is acting contrary to a Board order awarding the work pursuant to Section 10(k) of the Act.

In response to the charge, the Board convened a Section 10(k) jurisdictional-dispute proceeding in which it found that the two unions had made competing claims for the work in dispute, and it awarded the work at that jobsite to the Carpenters.  The Plasterers, however, continued to demand work at 97 other jobsites by further pursuing its lawsuit, and by telling SDI that it would drop the lawsuit only if SDI reassigned the work.  In response, the Carpenters again threatened to strike if the work was reassigned, and SDI filed another charge, prompting the Board to convene a second 10(k) hearing.  At that hearing, the Board rejected the Plasterers’ contentions that it was not seeking the work, that the Carpenters’ strike threat was the result of collusion between the Carpenters and SDI, and that the two unions had an agreed-upon method for voluntarily resolving their far-ranging dispute.  Because of the likelihood of future jurisdictional disputes, the Board issued a broad award of work to the Carpenters on all similar jobs done by SDI on any other public work projects in Southern California.  With the work awarded to the Carpenters under Section 10(k), SDI’s Section 8(b)(4)(ii)(D) charges against the Carpenters were dismissed.

After the Board issued its Section 10(k) awards, the Plasterers continued to demand the work, maintaining its state court lawsuit, filing an additional lawsuit against SDI and the Carpenters for tortious interference, and pursing grievances and arbitration under a plan for the settlement of jurisdictional disputes that at most covered only three of the jobsites at issue, and that conflicted with the plan specified in the Carpenters’ agreement with SDI.  In a December 30, 2011 Decision and Order, the Board found that the Plasterers’ continued pursuit of the work in the face of the Board’s 10(k) awards to the Carpenters violated Section 8(b)(4)(ii)(D), noting the well settled law that a union’s pursuit of a lawsuit or arbitration to obtain work awarded by the Board to another union under Section 10(k) has an illegal objective under the Act.  Because the lawsuit had an illegal purpose, the Board held that it may be enjoined as an unfair labor practice without running afoul of the Supreme Court’s decision in Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 737 n.5 (1983).  In a Decision and Order issued the next day, the Board found that the Plasterers again violated Section 8(b)(4)(ii)(D) by continuing to pursue grievances and arbitration awards against the Carpenters.  To tame this unlawful conduct, the Board issued a broad cease and desist order directing the Plasterers to cease and desist from threatening “any other person or employer.”

Before the Ninth Circuit, Local 200 challenged the Board’s initial jurisdiction to convene the Section 10(k) hearings, its findings that Local 200 violated the Act by continuing to pursue the work after the Board’s award to the Carpenters, and the Board’s broad order in its second decision.  Reviewing the Board’s factual findings for substantial evidence and its legal conclusions under the arbitrary and capricious standard, the Court upheld the Board’s orders in all respects.  As the Court observed, questions like these are “fairly technical . . . requiring industry knowledge and expertise in labor relations.”

The Court’s opinions are available here and here.


Administrative Law Judge Decisions

No Administrative Law Judge decisions.


Summary of NLRB Decisions for Week of October 15 – 18, 2013

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 or 202‑273‑1991.

Summarized Board Decisions

FJC Security Services, Inc.  (22-CA-086863 and 22-RD-083707.; 360 NLRB No. 6Floral Park, NJ, October 18, 2013.

The Board adopted the administrative law judge’s findings that the Employer did not violate the Act by warning employees that approval of their benefit requests was contingent on their support for decertification of the Union, and the judge’s recommendation that the Charging Party/Intervenor’s related objection to the election be overruled and a certification of results of election be issued.  Administrative Law Judge Mindy E. Landow issued her decision on June 12, 2013.  The charge was filed by Protective Security Officers Association.  The petition was filed by two individuals.  Chairman Pearce and Members Hirozawa and Johnson participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No unpublished R cases.

C Cases

Richmond District Neighborhood Center  (20-CA-091748)  San Francisco, CA, October 17, 2013.  The Board denied Richmond District Neighborhood Center’s motion for summary judgment on the grounds that it had failed to establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.


Appellate Court Decisions

Gestamp South Carolina, LLC, Board Case No. 11-CA-22595 (reported at 357 NLRB No. 130) (4th Cir. decided October 16, 2013)

In an unpublished opinion, the Court denied enforcement, vacated, and remanded the Board’s order in the above-captioned case pursuant to in-circuit precedent holding that the President does not have the authority to make recess appointments during intrasession recesses of the Senate.

In a December 2011 decision, the Board (Chairman Pearce and Members Becker and Hayes) found that the employer, a South Carolina auto parts plant, unlawfully threatened, disciplined and discharged two employees who attempted to organize a union.  The employer filed this petition for review, raising substantial evidence challenges to the Board’s order.  The Board replied, and the case was argued in September 2012.

Following argument, the employer submitted a series of letters contending—for the first time—that the Board’s order was invalid because Member Becker’s appointment was infirm.  It relied on the D.C. Circuit’s opinion in Noel Canning, Inc. v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 133 S. Ct. 2861 (Jun. 24, 2013), and the Fourth’s Circuit’s subsequent decision in NLRB v. Enterprise Leasing S.E., 722 F.3d 609 (4th Cir. 2013).  Both of those cases held that the Constitution did not allow the President to make recess appointments during an intrasession Senate recess.  The Board argued that the employer’s belated arguments were waived.

The Court, without explicitly addressing the waiver argument, concluded:

Board Member Craig Becker served as one of the three panel members in this case.  However, Member Becker was appointed by the President on March 27, 2010, during a two-week adjournment of the Senate. . . .  Because his appointment was constitutionally invalid from its inception, . . . there were not enough valid members to meet the requisite quorum and the Board lacked the power to lawfully act when it issued its decision in this case.

It therefore “remanded the case to the NLRB for further proceedings as may be appropriate.”  The Court’s order is available here.


Administrative Law Judge Decisions

Prudential Protective Services, LLC  (07-CA-095000; JD-72-13)  Taylor, MI.  Administrative Law Judge Melissa M. Olivero issued her decision on October 17, 2013.  Charge filed by Service Employees International Union (SEIU), Local 1.

The Avenue Care and Rehabilitation Center  (08-CA-094941; JD-74-13)  Cleveland, Ohio.  Administrative Law Judge Mark Carissimi issued his decision on October 17, 2013.  Charge filed by SEIU District 1199, WV/KY/OH The Healthcare and Social Service Workers Union.

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