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Today’s Labor Updates, December 21, 2018

NLRB Addresses Prospective Contracts vs. Election Bar

Article By: Martin Saunders

Under the National Labor Relations Act, the National Labor Relations Board (the Board) has jurisdiction over the process by which employees decide whether to select union representation for their workplace. The Board will get involved in response to a petition filed by an employer or union requesting it to conduct a secret ballot election in which the employees vote for or against representation by a particular union. To encourage stability in labor relations and to avoid a merry-go-round on the question of whether employees wish to be represented by a union, the Board has established various rules setting forth the circumstances under which it will or will not conduct an election. The Election Year Bar Rule provides that the Board will not conduct an election in the same bargaining unit within one year of a previous election. The Contract Bar Rule provides that a written, signed collective bargaining agreement with an effective date will prevent the holding of an election for the duration of that agreement or up to three years; whichever time period is shorter.

The Board recently was confronted for the first time in its eighty-three year history with the question of whether a ratified and signed collective bargaining contract, arrived at after almost a year of negotiations and that was not yet in effect because it contained a prospective effective date, operated as a bar to an employer’s petition for an election filed over a year after the date of the first election. or up to three years; whichever time period is shorter.

In this case, the Board was confronted with the tension between the desires for stability in labor relations versus employee free choice, i.e., the right of employees who do not support continuing union representation. The Board resolved this question by returning to its charter – giving priority to the desires of the employees concerning the issue of union representation. In doing so, it held that a ratified, signed collective bargaining agreement would not operate under the Contract Bar Rule to prevent an election before its effective date. Thus, the employer’s petition for election in this case was not barred and would be processed.

This decision has several practical implications. First, in negotiating and administrating a collective bargaining agreement, the employer, for simplicity and efficiency, should insist that the effective date of the contract be the first of the month after ratification and signature. Second, assuming that it has been more than a year since the date of the initial certification election, this opinion provides an escape route for employees who either never wanted union representation or who are dissatisfied with the union’s draft contract or the ratified agreement. Such employees, prior to the contract’s effective date, may provide the employer with evidence that they no longer favor union representation – which evidence would give the employer cause to file a petition for a second election. A delay in a contract’s effective date benefits the employer in that there is less time that it must deal with the union and honor the contract, and it affords both employees and their employer a longer period of time, and a second opportunity, to reject the union.

Wages Are Up in Latest Union Data, Due to ‘First Contracts’

By Joanne Letada

Dec. 20, 2018 6:41AM

First-year wage hikes negotiated in union contracts are rising as 2018 ends.

The average reached 3.4 percent as of Dec. 16, up slightly from 3.3 percent two weeks earlier, according to biweekly calculations from Bloomberg Law’s database of U.S. wage settlements. In 2017, the first-year average wage increase was only 2.6 percent at the mid-December point.

Of the 700-plus union contracts tracked by the database, those in the nonmanufacturing sector showed the greatest gains. The average wage increase was 4 percent, higher than the 3.9 percent reported in the previous biweekly period.

The increase was driven by several recently signed “first contracts,” which are agreements bargained after a group of workers is officially recognized as a union. First contracts traditionally yield large first-year pay raises, which can be seen in pacts ratified at Rivers Resort and casino (20 percent), First Student (11 percent), Mancon LLC (10 percent), and Frontier Airlines (8 percent).

When lump sums are factored into wage calculations, the average first-year increase is also on the rise: 3.6 percent as of Dec. 16, compared with 3.5 percent two weeks ago. This slight tip upward was because of the huge $4,000 ratification bonuses promised to workers at both ArcelorMittal and Spirit AeroSystems.

To contact the reporter on this story: Joanne Letada in Washington at

2019 Outlook: Busy NLRB Looks to Pivot From Controversies

By Hassan A. Kanu and Robert Iafolla Dec. 19, 2018 6:25AM

The NLRB will be working to issue two major workplace rules and resolve a huge case against McDonald’s in 2019, all while its chair and general counsel move carefully to avoid reigniting ethical controversies from 2017.

Big agenda items include issuing “joint employment” regulations, reworking union election rules, and deciding whether to accept a settlement offer from McDonald’s in a significant litigation. The National Labor Relations Board will also have to decide important cases on employee email use for union purposes, and the legality of employers’ workplace rules; continue an internal ethics review; and monitor the nomination of a fifth member.

The ethics review aims to address concerns voiced by Democratic politicians, labor advocates, and even NLRB career staffers, about officials in President Donald Trump’s administration. They say two board members should have to sit out certain decisions because of their ties to big management-side law firms, and that the board and general counsel are making unusual moves to accomplish a sweeping deregulatory agenda that will diminish the agency’s ability to adjudicate labor disputes.

Business coalitions say leadership is simply restoring balance following an aggressively pro-worker Obama-era board. Michael Lotito, an attorney with Littler Mendelson, said he hopes the NLRB will give businesses what they need to plan ahead after years of change.

The board “has a strong responsibility to try to provide the regulated community with certainty,” Lotito said.

Sources familiar with their thinking say Chairman John Ring and top prosecutor Peter Robb will be pressing on with their pro-business agenda—while trying to avoid the sort of criticism brought on by earlier moves.

“You can certainly understand these changes as consistent with a broader trend in the Trump administration to downplay the need to protect workers’ rights, and to enhance the interests of employers,” Sharon Block, a former Democratic board member, told Bloomberg Law.

At the same time, the board will see ramped-up congressional scrutiny in 2019, with Democrats taking the House. Labor committees will likely train their sights on the NLRB, said Celine McNicholas, labor law and policy director at the Economic Policy Institute.

“There’s a lot going on at that agency to be held to account for,” McNicholas told Bloomberg Law.

Looking to Avoid More Controversy

Ring and Robb each exercise significant authority over federal workplace policy. Critics will likely continue to view their actions with an eye on the background ethical controversies that have percolated since the board switched to Republican control in late 2017.

The firestorm started in a case called Hy-Brand. Then Chairman Philip Miscimarra (R) oversaw the ruling, which was laterwithdrawn because the NLRB inspector general and designated ethics official concluded Member William Emanuel (R) had a conflict of interest. Management attorneys slammed the controversy as political theater to stop policy changes.

Observers and NLRB insiders say the earlier criticism—including from some management allies—may have caused Robb to change his strategy for reforming the agency. He has pivoted to implementing smaller, piecemeal changes to case-processing and has taken to issuing directives via internal memos, as opposed to the usual public process.

The agency inspector general has also undertaken an investigation to identify employees who’ve leaked policy documents to the press. The NLRB declined to answer questions about the leak investigation.

On the board side, Ring will continue a comprehensive ethics review announced shortly after his confirmation, and aimed at establishing recusal protocols to help avoid a repeat of Hy-Brand.

Pondering Pearce

One item on the Senate agenda the board will also be watching is the pending nomination of former Chairman Mark Gaston Pearce.

Pearce is noted for a number of pro-worker decisions. His renomination by Trump was somewhat unexpected and is vigorously opposed by the business lobby.

Bloomberg Law reported in December that Senate Minority Leader Chuck Schumer (D-N.Y.) is discussing a deal with Republicans to confirm Pearce in exchange for speeding up votes on unidentified Trump administration nominees. That deal could be more difficult to land if Democrats also demand that Equal Employment Opportunity Commission member Chai Feldblum (D) be included.

Lawmakers haven’t reached a deal, and Schumer has denied discussing the nomination with the White House directly.

Pending Regs

Two ongoing rulemakings would set the board’s standard for determining whether a company is a joint employer, andmodify aspects of union election procedures. The agency doesn’t have extensive rulemaking experience and will have to navigate potentially problematic evidentiary requirements under the Administrative Procedure Act.

Ring, a self-declared “proponent of rulemaking,” has said there are other topics that are appropriate to handle via regulations. Rules take longer than decisions but are harder to undo.

In its more traditional realm of deciding individual cases, the NLRB laid out its framework for analyzing workplace rules in a 2017 ruling involving the Boeing Co. Administrative law judges and regional directors now have the first batch of those cases from the board on remand and many more will likely follow. The board will flesh out its Boeing standard as it reviews those jurists’ decisions.

The NLRB is also primed to decide a highly anticipated case that could potentially overturn an Obama-era ruling that granted workers the right to use work email to organize.

“The biggest issue for the board is to start issuing some of these major decisions, whether through rulemaking or the traditional process,” Littler’s Lotito said.

To contact the reporters on this story: Hassan A. Kanu in Washington at; Robert Iafolla in Washington at

Summary of NLRB Decisions for Week of December 3 – 7, 2018

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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

Bodega Latina Corporation d/b/a El Super  (21-CA-183276; 367 NLRB No. 34)  Anaheim, CA, December 3, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by denying an employee’s vacation pay request because of her union support, and violated Section 8(a)(1) by showing her a document which indicated that she was denied vacation pay because, among other reasons, she was “pro union.”  The Board rejected the judge’s recommendation ordering extraordinary remedies (notice-reading and a broad cease-and-desist order) and notice-posting at all seven of the Respondent’s union-represented stores in California.  The Board awarded interest to compensate for the Respondent’s delay in paying the requested vacation funds.

Charge filed by United Food and Commercial Workers Union, Local 324.  Administrative Law Judge Gerald M. Etchingham issued his decision on December 29, 2017.  Chairman Ring and Members Kaplan and Emanuel participated.


Apple SoCal, LLC d/b/a Applebee’s, Apple American Group II, LLC d/b/a Applebee’s and Apple American Group, LLC  (31-CA-185387; 367 NLRB No. 44)  Azusa, CA, December 4, 2018.  The Board remanded to the Regional Director the issue, before the Board on the Respondents’ Motion for Partial Summary Judgment, whether the Respondents’ mandatory arbitration agreement violates Section 8(a)(1) because it prohibits or restricts employees’ access to the Board.  The Board rejected the Respondents’ argument that the allegation should be dismissed as untimely under Section 10(b).  The Board also observed that, at the time the charge and the amended charges were filed, the issue of whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would have been resolved based on the “reasonably construe” prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).  The Board noted that it subsequently issued its decision in The Boeing Company, 365 NLRB No. 154 (2017), in which it overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases.  The Board found that, under the standard announced in Boeing, the General Counsel has not established that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law as to this complaint allegation.

Charge filed by an individual.  Chairman Ring and Members McFerran and Kaplan participated.


Orient Tally Company, Inc., and California Cartage Company LLC, a single employer  (21-CA-160242 and 21-CA-162991; 367 NLRB No. 36)  Wilmington, CA, December 4, 2018.

In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by interrogating an employee, telling an employee to bring work-related concerns directly to management rather than voice them elsewhere, and impliedly threatening an employee with termination by asking him why he did not work elsewhere if he was unhappy with his terms and conditions of employment.  Also, in the absence of exceptions, the Board adopted the judge’s dismissal of two complaint allegations.  In light of the unexcepted-to interrogation finding, the Board found it unnecessary to pass on the judge’s finding that the Respondent’s questioning of employees about taking heat breaks violated Section 8(a)(1) because the finding would be cumulative.  The Board also found it unnecessary to pass on the judge’s finding that the joint heat breaks constituted protected concerted activity. The Board reversed the judge’s finding that the Respondent threatened employees with unspecified reprisals when he ordered them to return to work.  Finally, the Board adopted the judge’s finding that the Respondent did not violate Section 8(a)(1) by issuing reports to employees documenting their heat breaks because the reports did not reasonably tend to create the impression that they were disciplinary in nature.

Charges filed by Warehouse Worker Resource Center.  Administrative Law Judge Ariel L. Sotolongo issued his decision on February 28, 2018.  Chairman Ring and Members Kaplan and Emanuel participated.


American Sales and Management Organization, LLC d/b/a Eulen America  (12-CA-163435 and 12-CA-176653; 367 NLRB No. 42)  Fort Lauderdale, FL, December 4, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent is an employer within the meaning of Section 2(2) and subject to the Board’s jurisdiction and that the Respondent violated Section 8(a)(3) and (1) by discharging and refusing to rehire an employee because she engaged in union activity.  The Board applied the National Mediation Board’s recently reaffirmed six-factor test for determining whether a company is controlled by a carrier and found that five of the six factors supported a finding that air carriers do not exercise a significant degree of influence over the Respondent’s operations and employees.  In a separate concurrence, Member McFerran reiterated her view that the National Mediation Board has not adequately explained its decision to return to the six-factor jurisdictional test.  However, Member McFerran joined the majority in asserting jurisdiction because the evidence demonstrated that the Respondent is not subject to carrier control under either the six-factor standard or the NMB’s prior approach which gave greater weight to carrier control over personnel decisions.

Charges filed by Service Employees International Union, Local 32BJ.  Administrative Law Judge Ira Sandron issued his decision on January 30, 2018.  Chairman Ring and Members McFerran and Kaplan participated.


University of Chicago  (13-CA-217957; 367 NLRB No. 41)  Chicago, IL, December 4, 2018.

The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

Chairman Ring noted that he did not participate in the underlying representation proceeding, but he agreed with his colleagues that the Respondent had not raised any litigable issue in this unfair labor practice proceeding and that summary judgment was appropriate, with the parties retaining their respective rights to litigate relevant issues on appeal.  In a future appropriate proceeding, however, Chairman Ring noted that he would agree to consider whether, and under what circumstances, students qualify as “employees” within the meaning of Section 2(3).   Members Kaplan and Emanuel noted that they participated in prior stages of the underlying representation proceeding in which relitigation of the employee status issue was precluded and, like the Chairman, they expressed an interest in considering, in a future appropriate proceeding, whether and under what circumstances students qualify as “employees” under the Act.

Charge filed by Healthcare, Professional, Technical, Office, Warehouse and Mail Order Employees, Local 743, IBT.  Chairman Ring and Members Kaplan and Emanuel participated.


United States Postal Service  (12-CA-207188; 367 NLRB No. 40)  Tampa, FL, December 6, 2018.

The Board dismissed the complaint, affirming the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(3) and (1) by terminating an employee for her union activity.  The judge found that, although the employee engaged in union activity and the Respondent was aware of that activity, the General Counsel had failed to offer any credible evidence that the Respondent harbored animus towards the employee’s union activity; moreover, the Respondent had met its burden of showing that it would have discharged the employee even absent her union activity.

Charge filed by an individual.  Administrative Law Judge Michael A. Rosas issued his decision on July 16, 2018.  Members McFerran, Kaplan, and Emanuel participated.


Novelis Corporation  (03-CA-121293, et al.; 367 NLRB No. 47)  Oswego, NY, December 7, 2018.

Upon remand from the Second Circuit Court of Appeals, the Board, applying the law of the case, deleted the Gisselbargaining order previously issued but agreed with the General Counsel that special remedies are necessary to dissipate any lingering effects of the Respondent’s unfair labor practices and to ensure a fair election if the Union files a new petition.  Because the Union did not request reinstatement of the petition, a Board majority (Chairman Ring and Member Kaplan) did not direct a second election.  Member McFerran would have reinstated the election petition and ordered a second election, reasoning that the petition was dismissed in the initial Board decision because the Gissel bargaining order mooted it.  Because the Gissel order has now been deleted, she argued that the petition should be reinstated.  In addition, in light of the Court’s remand in response to the Board’s Motion to Sever, the Board remanded to the Administrative Law Judge the two workplace rule violations consistent with the Board’s decision in The Boeing Company, 365 NLRB No. 154 (2017).

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.  Administrative Law Judge Michael A. Rosas issued his decision on January 30, 2015.  Chairman Ring and Members McFerran and Kaplan participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Pennsylvania American Water Co.  (06-RC-218209)  Pittsburgh, PADecember 6, 2018.  The Board denied the Employer’s and Intervenor’s Requests to Stay or, alternatively, to impound the ballots.  Chairman Ring and Member Kaplan expressed no view with respect to the revisions to the Board’s Election Rule, but agreed that it applied here and warranted denial of the Employer’s and Intervenor’s requests.  Petitioner—Utility Workers United Association, Local 537.  Intervenor—Utility Workers Union of America, AFL-CIO, and its Local 537.  Chairman Ring and Members McFerran and Kaplan participated.

C Cases

Ozburn-Hessey Logistics, LLC  (26-CA-092192, 15-CA-097046, et al.)  Memphis, TN, December 3, 2018.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 366 NLRB No. 177 (2018), on the basis that the Respondent had not demonstrated extraordinary circumstances warranting reconsideration.  The Board also rejected the Respondent’s contention that the Administrative Law Judge’s credibility findings preclude the Board from inferring its knowledge of employee’s union activity from circumstantial evidence.  Chairman Ring adhered to his partial dissent in the underlying decision, but agreed that the Respondent had not shown extraordinary circumstances warranting reconsideration.  Member Kaplan, who had not participated in the underlying decision, expressed no view as to whether it was correctly decided, but agreed that the Respondent’s motion should be denied because it had not shown extraordinary circumstances.  Charges filed by individuals and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers, International Union, AFL-CIO, CLC a/k/a United Steelworkers Union.  Chairman Ring and Members McFerran and Kaplan participated.

Boar’s Head Provisions Co., Inc.  (07-CA-209874 and 07-CA-212031)  Holland, MI, December 6, 2018.  The Board denied the Respondent’s Motion for Partial Summary Judgment regarding the complaint allegations that it unlawfully changed its vacation and attendance policies in order to discourage employees from engaging in union activity.  The Board found 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 concerning those allegations.  Charges filed by United Food & Commercial Workers International Union (UFCW), AFL-CIO.  Chairman Ring and Members McFerran and Kaplan participated.


Appellate Court Decisions

Mek Arden, LLC d/b/a Arden Post Acute Rehab, Board Case No. 20-CA-156352 (reported at 365 NLRB No. 109) (D.C. Cir. decided December 7, 2018)

In an unpublished judgment, the Court enforced the Board’s order issued against this operator of a long-term-care and rehabilitation facility in Sacramento, California.  The Board’s order remedies several violations of Section 8(a)(1) committed during the weeks leading up to an election in which a unit of certified nursing assistants, cooks, housekeepers, and maintenance workers voted 41 to 45 not to be represented by Service Employees International Union, Local 2015.

The Board (Chairman Miscimarra and Members Pearce and McFerran) found that the Employer unlawfully directed employees to wear attire associated with its anti-union campaign, created the impression that employees’ union and protected activities were under surveillance, prohibited the posting of union literature and removed such postings, and directed employees not to wear union scrubs or to visit areas of the facility to which they were not assigned.  The Board also found (Chairman Miscimarra, dissenting in part) that the Employer unlawfully solicited employee grievances and impliedly promised to remedy them.  Finally, the Board set aside the election and remanded the case to the Regional Director to conduct a new election.

On review, the Court held that the Board’s findings were supported by substantial evidence, sound credibility determinations, reasoned decision-making, and proper application of the law.  The Court also denied the Employer’s Motion to Remand the case for reconsideration under The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), which issued while review was pending.  In doing so, the Court agreed with the Board that Boeing “does not apply to rules that—as here—were promulgated in response to protected activity, or have been applied to restrict protected activity,” and therefore there was no basis for remand.

The Court’s unpublished judgment may be found here.


Administrative Law Judge Decisions

Bob’s Tire Co., Inc. and B.J.’s Service Company, Inc.  (01-CA-183476; JD-79-18)  New Bedford, MA.  Administrative Law Judge Arthur J. Amchan issued his decision on December 7, 2018.  Charge filed by United Food and Commercial Workers International Union Local 328.

Shamrock Cartage, Inc.  (09-CA-219396; JD-78-18)  Columbus, OH.  Administrative Law Judge Andrew S. Gollin issued his decision on December 6, 2018.  Charge filed by International Brotherhood of Teamsters, Local Union No. 413.

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