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Today’s Labor Updates, December 30, 2018

Employer’s Litigation Hold Not Unlawful, NLRB Division of Advice Concludes

By Mark Theodore on December 21, 2018

Last year about this time, the NLRB changed the standard for reviewing handbook rules.  The new standard takes into consideration the fact  there are many other interests other than the NLRA at play in a workplace, and seems to have quieted the frenzied scrutiny of employer policies. Over the years, the heightened scrutiny of employer policies has resulted in some interesting results in cases, as seen herehere and here.

There have been few cases decided by the NLRB using the new standard, and this is likely due to the fact fewer such charges are being filed over these types of issues.

On December 17, 2018, the Board released a Division of Advice Memorandum from October 2018 which evaluated an employer’s directive that employees preserve all communications related to a wage and hour class action.  In Uber Technologies, Inc., 19-CA-199000, Adv. Mem. (October 2, 2018), Advice addressed two allegations stemming from the employer’s defense of a lawsuit by one of its drivers.

The facts were simple.  An employee filed a federal and state class action alleging compensation issues.  The employer emailed several employees, including the plaintiff/employee, notifying them of the lawsuit and directing them not to comment on the lawsuit, and further, that if anyone contacted them about the lawsuit, they should contact the in-house attorney.

The employer also sent out an internal litigation hold and document preservation email, which informed employees they must “preserve and protect” any information they possessed related to the case, including:

  • All documents which contain communications pertaining to any allegation by Plaintiff that [employer] treated him unfairly in regards to his employment;
  • All communications with Plaintiff; and
  • All communications concerning Plaintiff.

Plaintiff filed a Section 8(a)(1) charge against the employer, alleging the two directives restrained and coerced him and other employees in violation of their Section 7 rights to discuss matters related to compensation.

Advice Concludes Directive Not To Comment on Lawsuit Was Unlawful

Advice concluded the employer’s directive to employees that they not comment about the lawsuit violated Section 8(a)(1) because it “prevents employees from discussing the lawsuit or the common grievance from which it sprang with one another, with the media or third parties.”  Advice directed the Region to issue complaint on this allegation because the employees’ “right to communicate with one another and with third parties and the media about grievances and potential remedies to those grievances, including lawsuits, is a significant Section 7 interest.”

This is not a surprising conclusion given that workplace discussion is a core aspect of Section 7.  Rules prohibiting discussion of compensation and other workplace issues also violate some state laws.

Litigation Hold Not Unlawful

Advice next analyzed the litigation hold and concluded it was not unlawful.  First, Advice noted the litigation hold did not “explicitly address protected concerted activity” but instead addressed “all communications” and thus it was facially neutral.

Second, Advice stated that while employees would “reasonably understand the hold to include protected concerted activities” of the plaintiff/employee, the “rule does not require employees to produce the communications,” merely to preserve them.

Finally, Advice noted the employer had significant interests in issuing the litigation hold:

Like all parties to a lawsuit, it is legally compelled to preserve evidence.  Adherence to this duty is key to avoiding liability for damages for spoliation of evidence.  While we have found no cases specifically holding that an employer must produce the private communications of its employees, this area of law is far from settled and it is appropriate for the Employer to err on the side of caution in complying with its legal obligation to preserve all documents that may constitute evidence in the ongoing litigation.  Moreover, broad litigation holds serve not just employers’ interest in avoiding penalization for spoliation of evidence, but also the interests of plaintiffs, intervenors, and the courts.

Because the broad litigation hold is “not focused on employee protected concerted activity” it was lawful.

National Grid, unions say no deal yet to end lockout; negotiations to continue

By Mark Arsenault and Katie Johnston Globe Staff  December 29, 2018

Negotiators for National Grid and the United Steelworkers bargained late into the night on Friday, in an attempt to reach their mutual goal for wrapping up talks and ending a six-month lockout.

The two sides had signaled optimism recently that the end of the prolonged standoff might be in sight.

But shortly before 1 a.m. Saturday, the company and union issued a joint statement saying they had not yet reached agreement, but will continue negotiations.

“After days of lengthy, productive bargaining sessions, National Grid and United Steelworkers Locals 12003 and 12012-04 negotiated all day and late into the night Friday,” the statement said. “The company presented the unions with a revised offer at 11:30 p.m. Friday. Given the lateness of the hour, the parties broke for the evening and have agreed to schedule meetings for the unions to respond formally to the company’s offer.”

Details of the offer were not disclosed.

The announcement came a week after the two sides issued a joint statement saying:

“The company and the unions have agreed to a firm schedule to meet and bargain with the shared intent to reach an agreement by December 28, 2018.”

After a break for Christmas, bargaining resumed this week, with sessions Wednesday, Thursday, and Friday — the day both sides had set as a goal for reaching a deal.

Political pressure has been building on National Grid to end the lockout of about 1,200 natural gas workers. The workers’ unemployment benefits are set to expire as soon as Jan. 14, according to the unions. In December, the Massachusetts House and Senate passed bills that would extend unemployment benefits for up to 26 additional weeks, or until the lockout ended. A separate bill that would require National Grid to provide health insurance to the locked-out workers and deprive the utility of rate increases and public funds was the subject of an emotional public hearing in early December.

Joe Kirylo, president of USW Local 12003, issued a statement Friday asking supporters to call Governor Charlie Baker’s office to urge Baker to sign the bill extending benefits for union members.

“Governor, if you do not sign this bill into law, it is not just us who you are allowing to die on the vine,” Kirylo said. “You will be affecting every worker in Massachusetts who finds themselves in our predicament in the future.”

A Baker spokesman said Friday that the administration is still reviewing the legislation.

State legislators have also sent letters to the Department of Public Utilities voicing concerns about gas safety and urging fines for safety violations the locked-out workers said they have observed at job sites. A moratorium on nearly all National Grid work was issued by the DPU in October after a spike in natural gas pressure in Woburn, although it was lifted in late December.

Developers facing a potential yearlong backlog in getting gas hookups due to the lockout have been growing increasingly concerned about completing their projects and getting them on the market.

Of the 116 cities and towns in the state that rely on National Grid for gas service, 85 are affected by the lockout, which began in late June after months of contentious contract negotiations. The main sticking points: the company’s proposal to offer a base health care plan with deductibles and coinsurance and replace pensions with a 401(k)-type plan for new hires, both of which have been agreed to by nearly every other National Grid union. After the contract expired at midnight on June 24, National Grid refused to let employees in, even though the unions had offered to keep working under the old contract.

On July 1, the company halted the workers’ health insurance, and entire families lost their coverage, leaving some in precarious positions. The unions have helped many members with health care coverage and other bills during the lockout. In December, Eversource gas workers held a Christmas party for the locked-out workers and their children.

Union members have picketed during lockout, monitored the work of replacement workers, and reported infractions to the DPU.

Boston Gas, which was acquired by National Grid, locked out its workers for five months in 1993. A number of current National Grid employees have been involved in both work stoppages.

Abbi Matheson of the Globe staff contributed to this story. Mark Arsenault can be reached at Follow him on Twitter @bostonglobemark.

U.S. Appeals Court Nixes Labor Agency’s Obama-Era ‘Joint Employment’ Test

Dec. 28, 2018, at 12:49 p.m.

By Daniel Wiessner

(Reuters) – A federal appeals court on Friday ruled that a U.S. labor agency’s Obama-era standard making it easier to hold companies liable for illegal labor practices by their contractors and franchisees was too broad, giving business groups a victory.

The U.S. Court of Appeals for the D.C. Circuit, in a 2-1 ruling, said that a 2015 National Labor Relations Board decision did not properly define the kind of “indirect control” over working conditions that the agency said could make companies so-called joint employers of contract or franchise workers.

Joint employers are required to bargain with contract workers’ unions and can be held liable for violating those workers’ rights under federal labor law. Overturning the 2015 standard has been a top priority of business groups, including the U.S. Chamber of Commerce, the nation’s largest business lobby, which said the Obama-era ruling threatened to upend supply chains and the franchise model.

The five-member NLRB, whose current majority was appointed by President Donald Trump, proposed a rule in September that would restore an earlier standard for determining when a company is a joint employer. The board has said it expects to adopt a final rule by June.

Under the proposal, companies are considered to be joint employers with their contractors or franchisees only when they exercise direct control over issues such as hiring or firing workers and setting wages.

In the 2015 case, the NLRB said that indirect control over the way work is performed could be enough to establish joint employment. The D.C. Circuit on Friday said that could be the case, but the board’s definition of indirect control went beyond the traditional legal understanding of what constitutes an employment relationship.

The court sent the case back to the NLRB with orders to “confine” its definition of control over working conditions.

The decision involved California sanitation company Browning-Ferris Industries Inc, which the NLRB said was a joint employer of workers at a recycling plant who were provided by a staffing agency.

Lawyers for Browning-Ferris did not immediately respond to a request for comment. Nor did an NLRB spokeswoman.

The NLRB had overturned the Obama-era joint employment standard in a December 2017 ruling. But it wiped out that decision two months later because a board member appointed by Trump was found to have a conflict of interest.

The case is Browning-Ferris Industries Inc v. National Labor Relations Board, U.S. Court of Appeals for the D.C. Circuit, No. 16-1063.

(Reporting by Daniel Wiessner in Albany, New York; Editing by Dan Grebler)

Summary of NLRB Decisions for Week of December 10 – 14, 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

Rockwell Mining LLC  (09-CA-216001; 367 NLRB No. 46)  Wharton, WV, December 11, 2018.

The Board granted the General Counsel’s Motion for Partial 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.

Charge filed by United Mineworkers of America, AFL-CIO, Region 2, District 12.  Chairman Ring and Members Kaplan and Emanuel participated.


Dolgencorp, LLC  (14-CA-223328; 367 NLRB No. 48)  Auxvasse, MO, December 11, 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.

Charge filed by United Food and Commercial Workers, Local 655.  Members McFerran, Kaplan, and Emanuel participated.


Chicago Teachers Union  (13-CA-207629 and 13-CA-213316; 367 NLRB No. 50)  Chicago, IL, December 12, 2018.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(1) by selectively and disparately enforcing a work rule and threatening employees because they engaged in union and protected concerted activities.

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


Troutbrook Company, LLC d/b/a Brooklyn 181 Hospitality LLC  (29-RC-216327; 367 NLRB No. 56)  Brooklyn, NY, December 13, 2018.

The Board denied the Employer’s Request for Review and Stay of the Regional Director’s Decision on Objections to Rerun Election and Certification of Representative as it raised no substantial issues warranting review.  Chairman Ring and Member Kaplan expressed no view with respect to the revisions made to the Board’s Election Rule, but agreed that it applied here and warranted denial of the Employer’s Request to Stay the certification of representative. 

Intervenor-Cross Petitioner—New York Hotel & Motel Trades Council, AFL-CIO (HTC).  Chairman Ring and Members McFerran and Kaplan participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

EQT Production Company (Subsidiary of EQT Corporation)  (09-RC-220731)  Pikeville, KY, December 10, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review.  The Regional Director overruled the Employer’s objections concerning employees’ photographing of their marked ballots.  Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.  Chairman Ring and Members McFerran and Emanuel participated.

Atlantic City Electric Company  (04-RC-221319)  Mays Landing, NJ, December 13, 2018.  The Board granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election with respect to whether the Employer’s System Operators possess the authority to assign employees to places and responsibly direct employees using independent judgment.  The Request for Review was denied in all other respects.  Member McFerran joined in granting review only with respect to whether System Operators possess the authority to assign employees to places using independent judgment, given that the Board presently is considering a similar issue in another case, Entergy Mississippi, Case 15-CA-018136, on remand from the Fifth Circuit Court; she would have found no substantial issues warranting review with respect to the Acting Regional Director’s determination regarding responsible direction and would deny review in that and all other respects.  The Acting Regional Director had found that the Employer had not established that the System Operators possessed any indicia of supervisory authority under the Act.  Petitioner—International Brotherhood of Electrical Workers, Local 210.  Members McFerran, Kaplan, and Emanuel participated.

C Cases

UPMC and its Subsidiary, UPMC Presbyterian Shadyside, Single Employer, d/b/a UPMC Presbyterian Hospital  (06-CA-102465, et al.)  Pittsburgh, PA, December 11, 2018.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 366 NLRB No. 185 (2018), on the basis that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  The Board Order corrected a factual misstatement made in the underlying majority opinion regarding the Section 8(a)(2) allegation.  Member Emanuel noted that he adhered to his dissenting positions in the underlying merits case, but he agreed that the Respondent had not demonstrated extraordinary circumstances warranting reconsideration.  Chairman Ring noted that he did not participate in the underlying decision, but he agreed that reconsideration is not warranted.  Charges filed by SEIU Healthcare Pennsylvania CTW, CLC.  Chairman Ring and Members McFerran and Emanuel participated.

Gardner Trucking, Inc.  (31-CA-191361, et al.)  Ontario, CA, December 12, 2018.  No exceptions having been filed in severed Case 31-CA-191361 in which the Administrative Law Judge dismissed the allegations, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charges filed by Teamsters Local No. 63.

Glass Fabricators, Inc. and Glass and Metal Solutions, Inc., alter egos  (08-CA-174567)  Lakewood, OH, December 14, 2018.  No exceptions having been filed to the October 19, 2018 decision of Administrative Law Judge Thomas M. Randazzo’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order.  Charge filed by International Union of Painters & Allied Trades District Council 6.


Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.


Administrative Law Judge Decisions

Nexteer Automotive Corp.  (07-CA-215036; JD-80-18)  Saginaw, MI.  Administrative Law Judge Paul Bogas issued his decision on December 10, 2018.  Charge filed by Local 699, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO.

Atlanticare Management LLC d/b/a Putnam Ridge Nursing Home  (02-CA-177329, et al.; JD(NY)-18-18)  New York, NY.  Administrative Law Judge Benjamin W. Green issued his decision on December 12, 2018.  Charges filed by 1199 SEIU United Healthcare Workers East.

Parkway Florist, Inc.  (06-CA-209583 and 06-CA-217020; JD-81-18)  Pittsburgh, PA.  Administrative Law Judge David I. Goldman issued his decision on December 12, 2018.  Charges filed by individuals.

Hearst Communications, Inc. d/b/a The San Francisco Chronicle  (20-CA-212720; JD(SF)-39-18)  San Francisco, CA.  Administrative Law Judge Gerald M. Etchingham issued his decision on December 13, 2018.  Charge filed by Pacific Media Workers Guild, Local 39521, TNG-CWA.

International Union of Operating Engineers Local 39 (Kaiser Foundation Hospitals)  (20-CB-212943; JD(SF)-38-18)  San Leandro, CA.  Administrative Law Judge Amita Baman Tracy issued her decision on December 13, 2018.  Charge filed by an individual.

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