BUSINESS TEL:   281.593.1690

BUSINESS FAX:  832.218.1996

Breaking News

Today’s Labor Updates, February 5, 2018

NLRB General Counsel Mulling New ULP Case Processing Procedures.

By Brennan W. Bolt on February 4, 2018 Posted in NLRB, NLRB Administration

In a January 29, 2018 email, the Office of the General Counsel of the National Labor Relations Board informed its Regional offices of potential changes it is considering with respect to how the NLRB processes unfair labor practice charges. The General Counsel had solicited suggestions “from all levels of the organization,” and compiled a “draft summary of suggestions” in a memo attached to the January 29th email.

The most significant change suggested is to require “institutional charging parties, such as unions, employers, other organizations, and employees who have a personal representative” to file a detailed position statement or affidavit with the unfair labor practice charge. The position statement would have to include a recitation of facts, identification of relevant witnesses, names of all alleged discriminatees, names and titles of relevant managers/supervisors/employer agents, the remedy sought, and relevant documents such as collective bargaining agreements and relevant grievances. Unrepresented individual charging parties would also have to file a position statement, but Regional personnel would be expected to assist them in completing the position statement.

The memo also included suggestions that investigative subpoenas be used sparingly and only after approval is provided by Operations, and that investigations would not seek employer EIN numbers or manuals, policies, handbooks, etc. unless directly related to alleged violations.

Other significant suggestions include:

  • potential dismissal of the charge if the charging party fails to respond to any request from the Region within two business days;
  • when contacting the charged party, the Board agent should go over the allegations, seek resolution including a bilateral resolution, and allowing non-Board resolutions to be memorialized by email;
  • if the Board agent and the supervisor decide to pursue an investigation of the charge, set a deadline for ultimate disposition;
  • prior to the opening of a hearing, Regions may take settlements of any kind that are not inconsistent with the Act.

The General Counsel’s office has requested comments to the suggestions by Friday, February 9.

Is telecommuting a reasonable accommodation? It depends.
Constangy Brooks Smith & Prophete LLP – Robin Shea

USA February 2 2018

Here are 10 questions to help you think it through.

The Americans with Disabilities Act requires, in appropriate circumstances, that employers make reasonable accommodations for employees with disabilities. A common question is whether it is “reasonable” for an employer to let an employee work from home as a reasonable accommodation.

I last wrote about this in 2015, when the U.S. Court of Appeals for the Sixth Circuit held in EEOC v. Ford Motor Company that Ford did not have to allow an employee with severe irritable bowel syndrome to telecommute.

I agreed with the court based on the circumstances of that case, even though I am generally very pro-telecommuting and do it quite a bit of it myself.

On the other hand, most courts say that employers can’t simply dismiss outright a request for telework as a reasonable accommodation, and that makes perfect sense, too.

So, let’s say an employee comes to you and says that she has a medical condition that requires telecommuting. Here are some questions you should ask:

FIRST STEP: Assess the employee’s medical condition and restrictions

The first thing you need to know in assessing a request for telecommuting as a reasonable accommodation is why the employee is asking for it.

No. 1: What exactly is the employee’s disability or medical condition, and how does being onsite (at the workplace) affect it? As an employer, you have the right to this information when an employee asks for any ADA accommodation.

No. 2: Does the employee have documentation from a health care provider with expertise in the appropriate field/specialty, confirming both the condition and the provider’s opinion that a telecommuting arrangement would be helpful? Although the Family and Medical Leave Act sharply limits employers’ ability to get follow-up information or information from providers other than the employee’s usual caregiver, the ADA reasonable accommodation process is not nearly so strict. For example, if your employee brings you a note from her chiropractor saying that she needs to telecommute full time because of her irritable bowel syndrome, you would generally have the right under the ADA to send the employee to a gastroenterologist to properly diagnose the IBS and recommend appropriate accommodations. (You — the employer — should pay for the visit, and you should also provide the specialist with relevant information about the employee’s job duties and work environment.)

No. 3: Do you have an adequate understanding as to what, in the opinion of the employee and her health care provider, a telecommuting arrangement would be expected to accomplish? In other words, do you understand their position as to how and why telecommuting would be helpful? (You don’t have to agree with it, but you ought to at least be able to comprehend it.)

STEP TWO: Assess the job

Not every job is suited for telecommuting. If the employee assembles cars in a factory or waits on customers at a retail store, the work can’t be done from home. On the other hand, many jobs can be done just as well from home — maybe even better. You need to know which type of job you’re dealing with.

No. 4: Is the employee’s job the type that requires an onsite presence, or can it be done about as easily and well from a remote location? Be sure to take into account any need for work-related travel. In addition to manufacturing and retail jobs, many supervisory jobs may preclude telecommuting because of the need for the supervisor to monitor performance, to set an example for the employees, and to be immediately available to any employees needing help. On the other hand, employees whose work is primarily done on a computer or phone with minimal need for in-person interaction — researchers, IT people, analysts, writers, for example — may be able to do just fine from a home setting.

Of course, many jobs require a mix of “face time” and “quiet time,” during which the employee can work remotely. Whether this type of job can be adapted for someone who needs telecommuting as a reasonable accommodation will depend on how important the “face time” is, and what percentage of the work week the employee needs to telecommute.

No. 5: If the employee works remotely, will it be possible for the employer to adequately monitor the employee’s punctuality, industry, and quality of work? This is obviously a very big deal.

STEP THREE: Assess the individual employee

If the job lends itself to telecommuting, then you will have to assess the ability of the particular employee to telecommute.

No. 6: Does the employee have the necessary “infrastructure” at home? Does she have fast internet, peace and quiet, an ability to maintain confidentiality where necessary (by use of a VPN, for example), reliable phone service, a decent laptop computer, electricity, etc? If the employee does not have certain essential equipment or service at home, are you willing to provide it to her at company expense?

No. 7: Does the employee work effectively with minimal supervision? You don’t want to be paying your employee to surf internet porn or watch TV all day. Has this employee proven that she meets deadlines and fulfills her other responsibilities whether or not anyone is watching? If not, do you have a way to provide effective “remote” supervision?

No. 8: If the employee is non-exempt, can you trust her to accurately post her time, and to limit herself to an eight-hour workday unless she gets your prior permission to work more? You still have to comply with the Fair Labor Standards Act, so you don’t want a “super-de-duper-dedicated” non-exempt telecommuter to be putting in 16-hour days while claiming only a standard eight-hour day because she loves you and the company so much. You also don’t want telecommuters to be claiming eight-hour days of work when they really spent two and a half hours working, plus three hours at Amazon and live-streaming QVC, one hour watching The Young and the Restless, and an hour and a half taking the kids from school to Little League and walking the dog.

(If the employee is exempt, this amount of goofing off would be a concern for other reasons, but it’s not an FLSA concern because you would have to pay the employee for the full workweek anyway, and you don’t have to worry about overtime. Just make sure she’s really exempt!)

STEP FOUR: Make your final decision

No. 9: In your opinion, could telecommuting possibly resolve the work-related issue created by the employee’s disability or medical condition? If not, you don’t have to allow it. But if it might, then move on to No. 10.

No. 10: Decision time! Now that you’ve considered and confirmed the employee’s medical condition, assessed the job, assessed the individual employee’s equipment, integrity, and work ethic, and assessed whether telecommuting could arguably resolve the problem created by the employee’s disability, do you believe that telecommuting could actually work? If so, go for it. If not, be sure to suggest and consider other accommodations, and thoroughly document the reasons you decided that telecommuting would not work.

NLRB Reverses Course, Permits Employer Unilateral Changes
Jackson Lewis PC – Howard M. Bloom and Philip B. Rosen

USA February 1 2018

The National Labor Relations Board has restored the right of unionized employers to implement changes that are consistent with past practice (as long as the change does not materially vary in kind or degree from past changes), even if that practice developed under a management rights clause in a collective bargaining agreement that has expired, and whether or not the changes are discretionary. Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017).

The NLRB overruled E.I. du Pont de Nemours, 364 NLRB No. 17 (2016), which had significantly restricted the right of employers to unilaterally implement changes — even where a past practice existed – if the practice arose under a management rights clause in an expired collective bargaining agreement. The Board also held that every action constitutes a change, regardless of whether the employer has a practice of making similar changes in the past, if the employer’s actions involve any discretion.

In this case, Raytheon and the union had a long history of entering into labor agreements that allowed the company to make unilateral changes to its health plan. The union never objected or requested to bargain about such changes the company made every January between 2001 and 2011. In 2012, however, when the labor agreement expired during negotiations for a successor agreement, a significant topic was whether the next agreement would continue to permit the company to unilaterally make changes to the health plan. The parties did not reach an agreement, and in January 2013, the company made discretionary changes to the health plan as it had done every year from 2001 to 2011. The union filed a charge with the NLRB, claiming Raytheon had violated its duty to bargain.

An NLRB administrative law judge ruled against Raytheon, finding the unilateral changes violated the company’s obligation to maintain the “status quo” while a contract was not in effect.

Reviewing longstanding Supreme Court precedent, the Republican-dominated Board explained that an established past practice can become part of the “status quo,” even if the practice grew out of the exercise of a contractual right during the term of a labor agreement. It held that a given action constitutes a change that must be bargained about only if the action materially differs “in kind or degree” from those the employer has made in the past. The Board also held that this principle applies even where the changes may involve discretion.

Finally, the Board made it clear that, while the employer may be able to make an action without bargaining, it still has a duty to bargain upon request by the union over the general subject matter at issue. For example, Raytheon could not refuse to bargain over health insurance in its entirety. However, it was not precluded from making changes consistent with past practice while bargaining.

Raytheon ensures that unionized employers retain the ability to run their businesses by making the same kinds of decisions they always have made, even when a labor contract is not in effect. How broadly the decision will be applied remains to be seen. Employers should view the decision as a potential shield to protect continued normal business operations.

Feb 2, 2018 @ 03:35 PM 1,115 2 Free Issues of Forbes

When Will Labor Unions Understand The Potential Of Technology To Improve Our Lives?

Enrique Dans , Contributor

One of the most powerful labor unions in the United States, the International Brotherhood of Teamsters, run since 1998 by the son of the late Jimmy Hoffa, is demanding as part of its collective bargaining deal with UPS that the company agree not to move toward logistics models based on drones or autonomous vehicles, that it hire 10,000 more workers and that it ban deliveries after 9 pm.

What would happen to UPS if it were to accept the demands? Simple: its rivals already researching and developing these technologies would use them instead, thereby reducing their costs, acquiring experience and offering better service, with the obvious consequences. And even if other logistics companies were to accede to the Teamsters’ demands, then it would be very likely that companies such as Amazon would simply develop their own logistics services using drones and self-driving vehicles, which would hit the logistics industry hard.

The difference between the Teamsters’ demands regarding drones and self-driving vehicles and those to protect its members who refuse to work in unsafe conditions is that refusing to incorporate technologies that improve productivity or service without compromising health and safety, and that would likely improve working conditions is simply a refusal to accept reality.

Fears of technological progress at the expense of jobs dates back to the industrial revolution, when workers had no rights and there were no welfare systems in place. But as history shows, technology only replaces those tasks it can do more efficiently that humans. Had these substitution processes not taken place, we would still be doing things as we did centuries ago. The idea that it makes sense to continue delivering things in vans driven by people who then take those packages to the customer’s door when there exist alternatives using technology is simply laughable.

Will logistics using self-driving vehicles eliminate jobs? Quite possibly. Will it improve distribution, delivery times and costs? Of course it will, otherwise it would make no economic sense to adopt that technology. Can those people who carried out a not particularly motivating job find new ways to earn a living? That will depend on their initiative and ability to retrain, along with state or corporate support. But instead of trying to block progress, labor unions should instead be working on finding alternative employment for those who lose their jobs as replacement technologies take over, along with retraining and improving working conditions.

As technology advances and comes up with more productive working methods that eliminate low-skilled jobs in the coming years, we are going to be hearing a lot more from the Teamsters and those presumably with the workers’ interests at heart. But is it really such a bad thing to eliminate jobs such as warehouse pickers, who spend the day running between shelves connected to an earphone telling them the coordinates of packages, leaving you exhausted and with voices for the rest of the day? What if replacing such jobs with robots frees people up to find new occupations that allow them to put their capabilities and interests to better use?Replacing people with robots might seem at first glance like a purely economic matter, but in reality it is about replacing jobs that humans should not have to do. Will life improve for humankind if we no longer have to carry out certain jobs? Or should we try, as the Teamsters are demanding, to protect jobs at all cost, ignoring or banning the fruits of technology until we find ourselves in a dead end? Is this really a sustainable approach?

There will be few certainties in the coming years. We may work fewer hours, we may implement universal basic income systems, which might work or not, and maybe we will continue to rely on cheap labor instead of robots. Inequality may continue to grow, and if it does, we could face huge social upheaval. There are any number of outcomes: it’s too early to know, but what is certain is that we are in a period of transition in which labor unions should be playing a key role. But unless and until labor unions  take a more forward-thinking approach that reflects the times we live in and show an understanding that technological progress cannot be stopped and what’s more, will play an ever-bigger role in our lives, they too may find themselves redundant.

Enrique Dans is Professor of Innovation at IE Business School

January 2018 Select events and news from the world of organized labor


According to the U.S. Bureau of Labor Statistics, 10.7 percent of U.S. workers belonged to unions in 2017, a rate unchanged since 2016. Nonetheless, union membership increased slightly from about 14.6 million workers in 2016 to 14.8 million workers in 2017. Employment gains across all sectors and organizing efforts by public sector unions likely contributed to the slight increase in union membership. The public sector worker unionization rate is 34.4 percent, while the private sector worker unionization rate is 6.5 percent.

The International Association of Machinists’ (IAM) new Director of Organizing, Vinny Addeo, announced the union’s new focus on organizing larger employers while expanding its involvement in the gig economy. While membership numbers for 2017 are not yet available, in 2016, the union’s membership declined by over 6,000 members to 299,185. IAM will implement a new approach to strategic organizing, giving on-the-ground organizers increased responsibility. The nearly $700 billion 2018 defense budget, which is likely to benefit sectors in which the IAM already has a large presence, may create further opportunities for membership gains.

Los Angeles Times newsroom employees voted 288-44 in favor of joining the NewsGuild, an affiliate of the Communications Workers of America (CWA), in a National Labor Relations Board (NLRB or Board)-organized election. Tronc, Inc., which owns the Los Angeles Times, opposed the unionization effort, but has stated that it will respect the outcome of the election. Among other issues, Tronc and the NewsGuild will have to address in subsequent negotiations whether certain editors should be included in the bargaining unit. The NewsGuild represents about 25,000 journalists and other media workers at the Associated Press and other newspapers.

Vox Media, a digital media company, agreed to voluntarily recognize the Writers Guild of America East (WGAE) as the bargaining representative of its over 350 editorial staff members following a unionization vote in November 2017. Negotiations between Vox management and staff were hung up on whether certain supervisory staff should be included in the bargaining unit. To put pressure on management to recognize a broader bargaining unit, Vox staff engaged in a “Slack” strike, in which they stopped using the digital messaging service for one hour.

Editorial staff at Slate, an online news magazine, voted 45-7 in favor of joining the WGAE. Editor-in-Chief Julia Turner stated that the company would respect the workers’ decision and recognize the union

UNITE HERE filed a petition with the National Mediation Board to represent 2,700 United Airlines catering workers, after about three-quarters of the workforce signed union cards. The unit includes kitchen workers in Newark, N.J., Cleveland, Ohio, Houston, Texas, Denver, Colo., and Honolulu, Hawaii.

Columbia University announced in a letter to the university community that it would not engage in collective bargaining with graduate students, who voted 1602-623 in favor of representation by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America in a December 2016 NLRB-supervised election. The vote followed an August 2016 NLRB decision that graduate students who work as teaching and research assistants are university employees who have a right to unionize. Columbia challenged the fairness of the election in December 2017, but the Board certified the result. The university now intends to challenge the NLRB’s decision that graduate students are employees with a right to unionize in federal appeals court. Columbia contends that graduate student unionization would undermine “principles essential to the University’s mission of training scholars.”

Since Kentucky’s passage of a right-to-work law in 2017, the state’s union membership rate declined from 11.1 percent to 9.6 percent. While the total number of workers in Kentucky increased by 100,000 to 1.81 million, union membership decreased by 16,000 members. The right-to-work law, which was recently upheld by a Kentucky Circuit Court, prohibits clauses in collective bargaining agreements that require non-union workers to pay union dues (see Administrative, Court & Other Decisions, below).

Strikes & Labor Disputes

Freelance video and audio technicians who cover Golf Channel tournament broadcasts engaged in an 11-day strike, forcing the network to hire replacement workers to cover several tournaments. The dispute between the International Alliance of Theatrical Stage Employees (IATSE)-represented employees and the Golf Channel followed months of negotiations after their previous two-year contract expired in June 2017. The union ended the strike upon ratifying a new contract that includes increased wages and health care contributions retroactive to expiration of the previous contract.

Major Contract Settlements & Negotiations

Average first-year pay increased by 2.6 percent in union contracts for the first two weeks of 2018, compared to 3 percent increases in the first two weeks of 2017. Wage increases in the manufacturing industry dropped to 1.8 percent, compared to 2.5 percent for the same period in 2017, while wage increases in the non-manufacturing industry dropped to 2.7 percent, compared to 4 percent for the same period in 2017. Public sector union wages increased by an average of 2.8 percent for the first two weeks of 2018, up from 2 percent for the same period in 2017. Small sample sizes may have contributed to the large gaps between the 2018 and 2017 numbers.

The City of Chicago reached an agreement with public sector unions constituting the Coalition of Unionized Public Employees (COUPE) to replace over thirty 10-year contracts covering about 30,000 city employees, which expired during summer 2017. Former Chicago Mayor Richard Daley agreed to the contracts with the public sector unions in 2007, in an attempt to prevent labor unrest that could have undermined his ultimately unsuccessful bid to host the 2016 Summer Olympics. The new five-year agreement retains costly prevailing wage requirements for about 4,000 members of the building trades unions and includes wage increases of 10.5 percent over five years for non-prevailing wage employees. The agreement also provides for city-matched deferred compensation retirement benefits. Under the contracts, employees’ health care premiums will increase by 0.5 percent in 2018, 2019, and 2020, and employees will pay higher deductibles for prescription drugs, increasing to $75 in 2021. By reaching the deal, the city averted a strike by 2,000 snowplow and garbage truck drivers belonging to International Brotherhood of Teamsters (Teamsters) Local 700.

The Professional Employee Council of Sparrow Hospital, representing about 2,300 nurses and licensed professionals, agreed to a new three-year contract with Sparrow Hospital in Lansing, Mich. The employees will maintain their current health care benefits under the contract, which is retroactive to October 2017.

CWA-represented workers approved a new four-year contract with AT&T Inc., covering about 21,000 workers across 36 states and the District of Columbia. The contract includes an employment security provision that requires the company to offer employees who face layoff due to closing stores or call centers, any available position for which they are qualified at another work location covered by a CWA labor contract. The deal also provides for a 10.1 percent increase in wages over the life of the contract and a $1,000 ratification bonus.

Approximately 1,100 drivers, warehouse workers, and market employees represented by Teamsters Local 200 approved a new three-year labor agreement at Hunts Point Produce Market. The agreement provides for wage increases of 3-4 percent each year and continues funding of the union’s health and pension plans. Hunts Point, New York City’s largest produce provider, supplies groceries to about 23,000 local restaurants.

Entergy Corp. reached a tentative four-year agreement with Energy and Utility Workers Union of America, Local 1-2, covering 330 workers at the company’s Indian Point nuclear power plant in Buchanan, N.Y. The contract extends past the planned decommissioning dates of the plant’s two nuclear reactors in 2020 and 2021, addressing work for union members during the decommissioning process.

The University of Minnesota reached an agreement with Teamsters Local 320, avoiding a strike by about 1,500 university employees. Following nine months of negotiations, the employees ratified the university’s final offer, which provides for a pay floor of $15 per hour for low-wage workers, a pay increase of 2 percent for workers at the top of the pay scale, continued step increases, and $300 annual lump sum payments. Further, the agreement permits workers to use up to six weeks of accrued leave without losing their position or work location. Some wage and benefits issues remain unsettled under the agreement, which must also be approved by the university’s Board of Regents. The agreement avoids disruptions that might have affected the pre-Super Bowl activities that are scheduled to occur on the university’s campus on February 4, 2017.

Teamsters Local 118-represented production employees at the Kraft-Heinz Company’s Avon, N.Y. plant approved a three-year contract with the company. The contract includes yearly wage increases, retroactive to December 1, 2017, and improvements to personal leave and vacation policies for the plant’s 340 production employees. In 2015, Kraft-Heinz announced that it would shutter its New York facilities, including the Avon plant. The company later agreed to continue production at the facilities after New York offered a $20 million incentive package to update equipment and retain employees.

Teamsters-represented mechanics and technicians approved a one-year contract with ExpressJet Airlines, a subsidiary of SkyWest Inc. The contract, which provides for an 8 percent raise, covers roughly 500 members of Locals 19, 210, 781, 783, and 964, located in New Jersey, Ohio, Illinois, Texas, and Tennessee.

Truck drivers represented by Teamsters Local 174 approved their first contract with Associated Petroleum Products, a subsidiary of World Fuel Services Corp., in Tukwila, Wash. The three-year contract, which covers nearly 100 drivers, provides for an average raise of 6.1 percent over the course of the contract, a signing bonus, additional holidays, and “improved healthcare at a lower cost.”

CWA-represented passenger service agents reached a tentative agreement with Piedmont Airlines, a subsidiary of American Airlines, including raises and increased health care and vacation benefits. The tentative contract covers about 4,600 employees in 28 states.

Culminating three years of bargaining, Air Line Pilots Association-represented pilots reached a tentative agreement with Spirit Airlines. The agreement, which covers about 1,800 pilots, includes wage increases, increased retirement contributions, and job security provisions.

Administrative, Court & Other Decisions

The U.S. District Court for the Eastern District of Pennsylvania held that employees of Just Born Inc., the maker of the Peeps marshmallow candy, lawfully engaged in a three-week strike for a new contract in September 2016, prior to the expiration of their then-existing contract. The court held that despite “no-strike” language in the employees’ then-existing contract, the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM) Local 6-represented employees retained their right to strike over disputes that could not be resolved under the then-existing contract’s grievance and arbitration provisions. Absent a clear agreement to extend the no-strike clause to cover future contract terms, the court declined to find that the clause governed the employees’ strike. Just Born’s contract dispute with the union, claiming $2.8 million in damages resulting from the strike, is still ongoing. Just Born, Inc. v. Local Union No. 6, BCTGM.

The U.S. District Court for the Central District of California found that the terms of a valid collective bargaining agreement shielded Kiewit Infrastructure West Co. from liability for workers’ claims that they were given inadequate meal and rest periods. Upon reconsideration of its previous ruling permitting plaintiffs to proceed to trial on claims under the California Labor Code, the court found that a collective bargaining agreement that was in place when the claims arose exempted the company from liability. The court held that where a collective bargaining agreement complies with Section 512(e) of the California Labor Code, as did the agreement at issue, the parties are required to resolve their disputes as outlined in the agreement. Since the agreement provided a binding grievance and arbitration provision, the court found that the agreement precluded the meal and rest period claims. The court additionally awarded the employer summary judgment on all remaining claims. Peter Zayerz v. Kiewit Infrastructure West Co. et al.

A Kentucky state court dismissed a challenge by Teamsters Local 89 and the AFL-CIO to the state’s right-to-work law, which was passed in 2017. The unions argued that the law’s prohibition of “union security clauses,” which require non-union employees to pay union dues, constituted a governmental “taking” in violation of the Kentucky Constitution, as it allowed non-union members to benefit from union services without having to pay dues. The Franklin Circuit Court disagreed, holding that unions lack a property interest in dues that the government could take. The unions reportedly intend to appeal the decision. Zuckerman v. Bevin.

The NLRB ruled 2-1 that an employer’s statement in a PowerPoint presentation that unionization would change the company’s “easy-going atmosphere” constituted an illegal threat in violation of the National Labor Relations Act (NLRA). Hendrickson USA, LLC, a truck suspension manufacturer, made the statement during an organizing campaign by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) in 2015, which never led to an election. The Board majority, consisting of Members Mark Pearce and Lauren McFerran, ruled that Hendrickson’s statement could be understood to threaten that the company would retaliate against workers for supporting the union by changing the company’s “easy-going culture” and adopting a less flexible managerial approach. In dissent, Board Member William Emanuel argued that the statement lawfully predicted that unionization would affect the employer’s ability to change employment terms and conditions without bargaining, which would result in reduced flexibility and change workplace culture. Hendrickson USA, LLC.

  • A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld a decision by a judge in the U.S. District of Oregon that policies a school district adopted prior to a strike violated the free speech provisions of the First Amendment and the Oregon Constitution. Jackson County School District No. 9 adopted two resolutions in advance of a May 2012 strike by teachers and staff represented by Eagle Point Education Association/SOBC/OEA. One resolution forbade picketing on any district property, including a newly-leased vacant lot across from the school that was used for picketing in previous strikes. The resolution also barred strikers from entering school facilities for any reason, even if unrelated to the strike. The other resolution prohibited signs or banners on district property without advance, written approval from the district superintendent. The Ninth Circuit agreed with the district court that the resolutions violated the free speech rights of the union, its president, and a student who was prohibited from parking in a school parking lot for keeping a sign in his car that supported the strikers. Further, the circuit court agreed that the restrictions could not be justified by the district’s legitimate interest in avoiding disruption in education, as the district did not show a “reasonable ground to fear” that disruption would occur. The circuit court also upheld the lower court’s award of $150,000 in attorneys’ fees.Eagle Point Education Association et al. v. Jackson County School District No. 9.

At the request of the NLRB, a three-judge panel of the U.S. District Court for the District of Columbia Circuit remanded most of an appeal of a Board decision, which held that certain rules in restaurant chain The Daily Grill’s employee handbook could be “reasonably construed” to discourage engagement in union activity. The handbook included provisions requiring employees to interact respectfully with management, barring employees from loitering at the workplace, and prohibiting certain relationships with outside parties, which prevented employees from entertaining union officials. Applying the “reasonably construe” standard, the NLRB found the rules constituted unfair labor practices. Given the Board’s replacement of the “reasonably construe” standard in its December 14, 2017 case, The Boeing Company, the D.C. Circuit remanded the case for reconsideration under the Board’s new standard. On remand, the Board will consider: (1) the nature and extent of the rules’ potential impact on NLRA rights, and (2) legitimate justifications associated with the rules. The circuit court also remanded a portion of the NLRB’s decision stating that The Daily Grill violated the NLRA by prohibiting workers from wearing union buttons on their uniforms during an organizing campaign. The D.C. Circuit nonetheless upheld the portions of the NLRB’s decision that The Daily Grill did not appeal, including that the company violated the NLRA by threatening an employee with termination unless he stopped supporting the union. Grill Concepts Services Inc. v. NLRB. 

An NLRB panel unanimously upheld an Administrative Law Judge’s (ALJ) decision to dismiss a complaint alleging that a Missouri Burger King franchise manager threatened to fire employees who were discussing striking for higher wages. Panel Members Mark Gaston Pearce, Lauren McFerran, and William Emanuel found “no basis for reversing” the ALJ’s decision, which reasoned that the employee’s claim that the manager joined the discussion and boasted that he would fire the employees and lie about the reason for their terminations was no more credible than the manager’s “vigorous” denial of making any threats. The manager stated that he entered the employees’ discussion to find out the number of striking employees for scheduling purposes. The ALJ reasoned that the Workers’ Organizing Committee-Kansas City, which filed the charge, failed to corroborate employees’ accounts of the interaction during the ALJ’s hearing. Likewise, the ALJ declined to credit the NLRB general counsel’s argument that a union organizer corroborated an employee’s account of the interaction, finding that the organizer learned the information secondhand. EYM King of Missouri LLC.

Legislation & Politics

Since 2010, labor unions have contributed over $1.1 billion to politically left-leaning political groups without receiving prior approval from union members, according to a report by the Center for Union Facts (CUF), an organization that is critical of labor unions. Unions including, among others, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), International Brotherhood of Electrical Workers (IBEW), and UNITE HERE contributed millions of dollars obtained through member dues to organizations including, among others, the Democratic Governors Association, America Votes, and the Center for American Progress. The CUF is lobbying the U.S. Congress to approve of the “Employee Rights Act,” which, among other things, would require union leadership to obtain member approval before spending dues money on political operations or in support of political parties or candidates.

NLRB General Counsel Peter Robb, an appointee of U.S. President Donald Trump, appointed John W. Kyle as his Deputy General Counsel, replacing Jennifer Abruzzo, who served in the position during the Obama administration. Deputy General Counsel Kyle, who worked with General Counsel Robb earlier in his career, came out of retirement to accept the appointment, which does not require Presidential input or Senate confirmation.

President Trump nominated John Ring, a management side attorney, to fill the NLRB vacancy left by the December 2017 departure of former Board Chairman Philip Miscimarra. If confirmed, Ring will join new Board Chairman Marvin Kaplan and Member William Emanuel in the Board’s Republican majority. Members Mark Gaston Pearce and Lauren McFerran will form the Board’s Democrat minority.

At the urging of the Teamsters, two California cities have drafted ordinances to lessen the effects of delivery robots on unionized employees. San Francisco passed an ordinance in December 2017 requiring robotic delivery companies to prove that they considered potential labor disputes before obtaining a delivery permit. A proposed Berkeley ordinance, which has not yet been finalized or approved, would include a space on permits for a designated union “robot handler” position and would give companies with unionized workers priority over non-unionized companies. Critics have argued that the ordinances will unnecessarily increase costs for businesses trying to enter the robot delivery market and that the vague “proof” requirement in San Francisco’s ordinance may be abused.

UNITE HERE announced that it would not contribute to the reelection campaigns of 23 House Democrats who voted along with Republicans in favor of the Tribal Labor Sovereignty Act, which would bar NLRB jurisdiction over tribe-owned businesses in tribal territories. While supporters of the bill argue that it will restore tribal sovereignty and reduce NLRB overreach, UNITE HERE contends that the bill “strip[s] existing federal labor rights of American workers.” The Senate version of the bill passed the Committee on Indian Affairs in early 2017, but has not yet come up for floor consideration.

The AFL-CIO selected the former director of the Democratic National Committee’s (DNC) Office of DNC Leadership to serve as the first head of its new “Mobilization Hub.” The Hub is intended to support political candidates and to recruit and train union members to run for political office. While the AFL-CIO contends that the Hub will support political candidates regardless of their political party, so long as the candidates support working people, the federation has largely supported Democratic candidates in past elections. With about 75 employees, the Hub will be the largest department in the AFL-CIO.

The Florida House of Representatives voted 65-41 in favor of a bill that would require public-sector unions to annually report the number of workers who are eligible for union membership and the percentage of those workers who are dues-paying members. Where a unit’s union membership falls below 50 percent, the union would be required under the bill to seek recertification by petitioning the state and surviving a new election process. While police and firefighter unions are exempt from the recertification requirements under the terms of the bill, the Florida Education Association and the American Federation of State, County &Municipal Employees (AFSCME) would be subject to the law. A similar House bill, passed in 2017, did not receive any committee hearings in the Florida Senate.

Comments are closed.