BUSINESS TEL:   281.593.1690

BUSINESS FAX:  832.218.1996

Breaking News

Today’s Labor Updates, July 14, 2018

Summary of NLRB Decisions for Week of July 2 – 6, 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

Glades Electric Cooperative, Inc.  (12-CA-168580, et al.; 366 NLRB No. 112)  Lake Placid, Moore Haven, and Okeechobee, FL, July 2, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by: (1) unilaterally eliminating the unit positions of mechanics and meter specialists and reassigning their work to the non-unit positions of transportation foremen and energy service agents; (2) refusing to accept and process a grievance; and (3) engaging in direct dealing with employees regarding severance pay.  The Board also adopted the judge’s finding that the Respondent violated Section 8(a)(3) and (4) by transferring and then laying off two former meter specialists because of their union activities and because the Union filed and pursued unfair labor practice charges on their behalf.  Finally, the Board adopted the judge’s finding that the Respondent violated Section 8(a)(1) by coercively interrogating an employee about his union sympathies and threatening to lay off the meter specialists because of their union and charge-filing activities.

Charges filed by the International Brotherhood of Electrical Workers, Local 1933, AFL-CIO.  Administrative Law Judge Charles J. Muhl issued his decision on June 1, 2017.  Members Pearce, Kaplan, and Emanuel participated.


Colorado Symphony Association  (27-CA-140724, et al.; 366 NLRB No. 122)  Denver, CO, July 3, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by: (1) unilaterally implementing its initial contract proposal in the absence of a valid impasse; (2) unilaterally changing terms and conditions of employment; (3) dealing directly with employees about terms and conditions of employment; and (4) withdrawing recognition from the American Federation of Musicians of the United States and Canada, AFL-CIO/CLC (AFM).  A Board majority (Members Pearce and McFerran) also adopted the judge’s findings that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide requested information to the AFM.  Dissenting in part, Member Kaplan would dismiss the allegation that the Respondent violated Section 8(a)(5) and (1) by failing to provide the information requested by the AFM, finding that the Respondent has a legitimate confidentiality concern for refusing to proffer the requested information without a monetary damages provision in a proposed confidentiality agreement.  He would not rely on this conduct when joining his colleagues in affirming the finding that the Respondent unlawfully implemented its initial contract proposal in the absence of a valid impasse.  Additionally, Member Kaplan disagreed with his colleagues that the Respondent violated Section 8(a)(5) and (1) by making unilateral changes to musicians’ terms and conditions of employment when it recorded an interactive large-scale public arts project, finding that the General Counsel failed to prove this project involved video game work that fell within the AFM’s Video Game Agreement.

Charges filed by American Federation of Musicians of the United States and Canada, AFL-CIO/CLC.  Administrative Law Judge Geoffrey Carter issued his decision on February 14, 2017.  Members Pearce, McFerran, and Kaplan participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No unpublished R Cases Issued

C Cases

Walden Security, Inc.  (14-CA-170110, 15-CA-176496, 16-CA-170337 and 18-CA-170129)  Chattanooga, TN, July 2, 2018.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 366 NLRB No. 44 (2018), on the basis that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  Charges filed by United Government Security Officers of America, International Union jointly with its Member Locals 85, 86, 109,  111, 173, 175, 220.  Members Pearce, Kaplan, and Emanuel participated.


Appellate Court Decisions

In-N-Out Burger, Inc., Board Case No. 16-CA-156147 (reported at 365 NLRB No. 39) (5th Cir. decided July 6, 2018)

In a published opinion, the Court enforced the Board’s order issued against this operator of more than 300 fast food restaurants bearing the name In-N-Out Burger, including one in in Austin, Texas, where the case arose after employees wore buttons demonstrating support for the “Fight for $15” campaign.  The Board (Acting Chairman Miscimarra and Members Pearce and McFerran) found that the Employer violated Section 8(a)(1) by maintaining a prohibition on all unauthorized pins and stickers, and by instructing an employee to remove his “Fight for $15” button.  Further, the Board (Miscimarra, dissenting) found that the Employer violated Section 8(a)(1) when a manager told another employee that the button was not part of the uniform.

On review, the Court recognized the settled principles that employees have the right to wear such items as buttons, pins, and stickers that relate to terms and conditions of employment, citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), and that the Board will find an employer’s work rule that infringes upon the employees’ Section 7 right to wear protected items “presumptively invalid,” unless the employer carries its burden of establishing “special circumstances” that would outweigh the employees’ right.  Noting that the rule in this case bans employees from “[w]earing any type of pin or stickers,” the Court held the rule was presumptively invalid.  The Employer argued that its unique public image and its concern for food safety constituted special circumstances sufficient to overcome the presumption.

Assessing the Employer’s public-image contention, the Court held that there was no demonstrated connection between the “Fight for $15” buttons and the Employer’s asserted interests in preserving a consistent menu and ownership structure, ensuring excellent customer service, and maintaining a “sparkling clean” environment in its restaurants, and that the Employer had not established its asserted interest in maintaining consistent, unadorned employee uniforms as part of its public image.  Moreover, the Court agreed with the Board that the Employer’s requirements that twice a year employees wear larger, more noticeable “Christmas and In-N-Out Foundation buttons,” undercut its claim that employee uniforms needed to remain consistent and button-free.  Rejecting the Employer’s food-safety contention, the Court noted, as the Board had, that its rule banned all buttons, other than its own, “without regard to their safety,” and that the Employer had failed to show that its ban was a genuine, narrowly tailored rule based on food-safety concerns.  Finally, the Court upheld the Board’s finding that it was unlawful for the manager to have told an employee that the “Fight for $15” button was not part of the uniform because it would have been understood as an instruction to not wear the button.

The Court’s opinion is here.


Administrative Law Judge Decisions

Fred Meyer Stores, Inc.  (19-CA-206136; JD(SF)-18-18)  Portland, OR.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on July 2, 2018.  Charge filed by United Food & Commercial Workers, Local 555.

Center Line Studios, Inc.  (02-CA-185189; JD(NY)-08-18)  New York, NY.  Administrative Law Judge Jeffrey P. Gardner issued his decision on July 2, 2018.  Charge filed by International Alliance of Theatrical Stage Employees, Local 311.

Electrolux Home Products, Inc.  (15-CA-206187; JD-42-18)  Memphis, TN.  Administrative Law Judge Arthur J. Amchan issued his decision on July 2, 2018.  Charge filed by an individual.

NLRB Announces New Pilot ADR Program

Article By: Daniel B. Pasternak

On July 10, 2018, the National Labor Relations Board (NLRB) announced the launch of a new pilot program to enhance the use of its existing alternative dispute resolution (ADR) program. Since 2005, the NLRB has offered assistance to parties in settling unfair labor practice matters pending before the Board through ADR procedures.  According to the agency’s website, mediators helping participants through the ADR program have reached settlements in about 60 percent of cases, and all of those settlements have been approved by the Board In its statement announcing the program, the NLRB said that the “new pilot program will increase participation opportunities for parties in the ADR program and help to facilitate mutually-satisfactory settlements. Allowing parties greater control over the outcome of their cases, the NLRB’s ADR program can provide parties with more creative, flexible and customized settlements of their disputes.”

Rather than waiting for parties to request to participate, under the pilot program, the NLRB will proactively engage parties with cases pending before the Board to determine if their case is appropriate for the ADR program and encourage parties to utilize ADR. Parties also can continue to request to use the ADR program in an effort to resolve their cases.  Previously, information regarding the ADR program would be mailed to parties after an administrative law judge’s initial decision.  Under the pilot program, the NLRB’s Office of the Executive Secretary will actively contact parties with unfair labor practice cases before the Board and inform them of the option of using the ADR program. The Board will provide the parties with an experienced mediator, either from the Federal Mediation and Conciliation Service or the ADR program director, to facilitate confidential settlement discussions at no cost to the parties.

The NLRB’s statement suggests that the ADR program can be particularly useful in cases where traditional settlement negotiations have been unsuccessful.  Those employers with pending matters before the Board are encouraged to confer with counsel to determine if their pending case may be appropriate for the ADR program.

Lehigh Valley workers join in strike threat at Exxon Mobil research plant

Anthony Salamone Contact Reporter Of The Morning Call

Some 150 union workers at an Exxon Mobil Corp. research facility near Interstate 78 in Hunterdon County, N.J., about 35 of whom commute daily from the Lehigh Valley, could walk off their jobs soon.

Workers have voted 57-14 to grant leadership the authorization to call a strike against the international energy conglomerate, said Michael G. Myers, president of the Independent Laboratory Employees’ Union.

The union has filed unfair labor practice charges against Exxon Mobil, one in April and one June 29 — the same day the company presented its final offer, Myers said. He said union leaders hope for a favorable decision from the National Labor Relations Board’s Newark office, which has both complaints. He said a strike date has not been set.

“We’re looking to see how the unfair labor practice charges plays out,” Myers said Tuesday night, shortly after the rank-and-file took the vote.

The union has accused Exxon Mobil in NLRB documents of bargaining in bad faith. It also accused the company of retaliating against union workers after a state arbitrator recently ordered the company to stop filling union positions with contractors.

“[Exxon] wants to weaken it so much that it can’t be effective,” Myers said of the union.

Myers and Tom Fredriksen, the union’s vice president, said workers have been without a contract since June. Negotiations, which began May 7, have left the sides far apart on wages, a parental paid-time-off policy and permanently contracting out union jobs.

“I think the work we are doing here is bringing a lot of value to the corporation and to the shareholders,” Myers said during an interview July 4. “There’s a lot of energy challenges the company is trying to meet, and research and technology, they say, are the ways we have an advantage over competitors, and our members are an integral part of that.”

Myers said the company has offered a five-year contract with wage increases between 1 percent and 2.5 percent, plus a one-time, $5,000 ratification bonus. He said the union has countered with wage hikes between 2.5 percent and 3.5 percent, with no ratification bonus. He said the union workers, who include research technicians, mechanics and more, earn an average wage of approximately $38 an hour.

Myers also said the company in November enacted a parental paid time off policy of eight weeks per year, but it has applied only to nonunion workers. Union employees have been offered one week of parental paid time off, he said. The union attempted to bargain over this benefit in January but the company declined, he said.

“We believe that the final offer is fair and provides competitive wages, continuity and stability for the membership,” Exxon Mobil spokeswoman Suann Guthrie said.

Exxon Mobil announced last year it would expand the Clinton Township facility and move about 340 employees there from another research in Paulsboro, which is in Gloucester County, N.J. Myers said about 50 of those workers are also affected by the Independent Laboratory union’s contract.

The Exxon Mobil plant sits along Route 22 East, near Interstate 78. It’s about 20 miles from Easton and 40 miles from Allentown. The company in its website identifies the sprawling facility as one of its “primary research hubs” that provides research supporting all its major business lines. Its corporate owner, which ranks No. 2 on the Fortune 500 list, recorded 2017 profit of nearly $20 billion, including $8.4 billion in the last quarter of the year from a boost under the federal tax reform law.

Exxon Mobil Research and Engineering Technology Center

Address: 1545 Route 22 East, Clinton Township, Hunterdon County.


Employees: about 800, 150 of whom belong to the Independent Laboratory Employees’ Union

What’s happening? By a 57-14 vote, union workers have authorized its leaders to call a strike. A date has not been sent.

Comments are closed.