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Today’s Labor Updates, July 25, 2018

Everyone Loses from Alcoa’s Lockout at ABI Smelter: USW

July 19, 2018 MRO Magazine

As aluminum giant Alcoa releases its second-quarter results today, the United Steelworkers (USW) is revealing the true extent of losses incurred by the company’s lockout of workers at its ABI smelter in Bécancour.

Each month of the lockout is depriving Alco and Rio Tinto – co-owners of the ABI smelter – CAN$85 million in revenues (US$66 million) and CAN$26 million (US$20 million) in profits, the USW said.

The union calculated lost revenues and profits based on data from the Commodities Research Unit (CRU), a U.K.-based business research organization specializing in global aluminum markets among other sectors.

The USW’s analysis reveals that, since the lockout at the ABI aluminum smelter began on January 11 this year, Alcoa and Rio Tinto have lost CAN$468 million (US$367 million) on first and second quarter revenues.

“The lockout is costing Alcoa and Rio Tinto dearly,” said Clément Masse, President of USW/Syndicat des Métallos Local 9700, representing the 1,030 locked-out ABI employees.

“Aluminum prices are healthy right now, so each month that this dispute drags on represents lost revenues and profits. But the lockout also is costing Quebecers dearly, since Hydro-Québec has been deprived of $114 million in electricity revenues to date – and counting.”

The data released today by the USW takes into account factors such as a two-thirds reduction in production at the ABI smelter during the lockout, as well as the price of aluminum and the Midwest premium. The union says its calculations are conservative, given that they don’t include losses from a complete cut in production of ABI’s value-added products such as aluminum billets and slabs.

“The effects of this lockout are disastrous. Alcoa and Rio Tinto are losing, the Quebec government and all Quebecers are losing, workers and their families are deprived of their livelihood and the entire community is affected,” said Masse. “Everyone loses, so why let this continue? It is high time to abandon this approach and to get back to producing high-quality aluminum at an efficient and productive smelter that operates with green electricity.”

The ABI smelter is 74.9 per cent owned by Alcoa, with Rio Tinto owning the remaining 25.1 per cent. Prior to the lockout, the USW and the company were close to an agreement and were working to resolve two outstanding issues – pension plan changes and language related to seniority and employee turnover.

However, after the Quebec government recently appointed a special mediator to assist in the negotiations, the company has brought new demands for concessions from the locked-out workers. Earlier this month, more than 90 per cent of the workers voted to confirm their support for their leadership and bargaining committee.

NLRB Member Pearce, One of Two Remaining Democrats, May Not Get Third Term

Article By: Adam C. Doerr Howard M. Bloom

The Trump Administration is being asked not to give Member Mark Gaston Pearce, one of two remaining Democrats on the National Labor Relations Board, another term after his current term, his second, expires on August 27, Bloomberg BNA has reported.

Industry groups reportedly have asked the President to delay re-nominating Member Pearce to a third term, a process the Trump Administration had begun. That process has apparently “been put on hold.” Pearce was sworn in as a Board Member on April 7, 2010.

Trump has re-shaped the NLRB by nominating Republican Members to fill Board vacancies. Last fall, the U.S. Senate confirmed Marvin Kaplan and William Emanuel, which, along with then-Chairman Philip Miscimarra, a Republican, gave the Board a Republican majority for the first time in more than a decade. In December 2017, that Board issued a series of business-friendly decisions that overruled high-profile decisions championed by labor organizations and the Obama Administration. More recently, management-side labor attorney and Republican John Ring was confirmed as a Board Member to replace Miscimarra, whose term ended after the decisions were issued.

Traditionally, the NLRB is made up of three members of the sitting president’s political party and two members of the minority party. That means that the seat Pearce vacates would be filled by a Democrat appointed by Trump. However, Trump also has the option not to fill the vacant seat. The Board could operate with four of the five seats filled – only three Members are needed for a quorum. Although having an even number of Board members could increase the possibility of 2-2 votes, given that three of the four Members would be like-thinking Republicans, that possibility should be minimal.

With or without Member Pearce, or any replacement, Trump’s Republican-controlled NLRB is expected to continue undoing decisions that heavily favored labor organizations.

Private-Sector NLRB Weingarten Ruling Could Affect Federal Sector Too

Jeffrey J. Lorek July 23, 2018

A bargaining unit employee’s statements to Agency representatives concerning his or her attempts to obtain union representation will likely be sufficient to trigger Weingarten even if the employee does not make an explicit request for representation in the underlying investigatory interview. A recent National Labor Relations Board (“Board”) decision issued last month seems to interpret Weingarten more liberally than ever before.

While federal agencies have held the traditional view that the right to union representation at a disciplinary interview arises “only in situations where the employee requests representation,” NLRB v. J. Weingarten, Inc., 430 U.S. 251, 256-57 (1975), a June 15, 2018 decision by the Board appears to loosen the standard for determining when Weingarten rights are triggered.

In Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas and Michael Schramm, 2018 NLRB LEXIS 215, Case 28-CA-120975 (Jun. 15, 2018), the Board adopted the Administrative Law Judge’s finding that the employer violated a bargaining unit employee’s Weingarten rights by denying a union representative at a due process meeting concerning the employee’s suspension from work.

At the meeting, the employee mentioned to his employer that he had telephoned the union and left messages asking for help. The employee explained that he called the union three times and notified it of the scheduled meeting, but that nobody from the union showed up at the meeting.

Interestingly, at the meeting itself, the employee never actually asked for a union representative and did not specifically invoke Weingarten. Rather, the employee simply explained that he was present at the meeting without representation after unsuccessfully trying to obtain the union’s assistance.

The Board—in a 2-1 vote, with Chairman Ring dissenting—held that the employee’s statements were sufficient to put the employer on notice that the employee desired union representation. In the very short opinion, the Board cited to Houston Coca Cola Bottling Co., 265 NLRB 1488 (1982) and Consolidated Edison Co. of New York, 323 NLRB 910, 916 (1997) to support the finding that Weingarten requests are meant to be construed liberally.

The Board declared that “[n]o magic or special words are required [to trigger a Weingarten request] . . . . It is enough if the language used by the employee is reasonably calculated to apprise the [e]mployer that the employee is seeking such assistance.” Circus Circus Casinos, Inc., 2018 NLRB LEXIS 215 at **4-5.

The Board further explained that statements or inquiries such as “I would like someone there [who] could explain to me what was happening,” “[s]hould I have someone in here with me, someone from the union[?]” or whether a witness was needed at the meeting were all sufficient enough to trigger Weingarten rights.

Of course, the Board does not hear federal sector cases; the Federal Labor Relations Authority (the “Authority”) does. Notwithstanding, the Authority’s guidance on investigatory meetings is premised upon the same Weingarten Supreme Court case, and the “[t]he Authority has concluded that the ‘purposes underlying the Weingarten right in the private sector—promoting a more equitable balance of power and preventing unjust disciplinary actions and unwarranted grievances—also applies to the right to representation created by section 7114(a)(2)(B)’” of the Labor Statute governing federal sector labor-management relations.

Moreover, federal sector case law appears to already comport with the concepts of liberal construction emphasized in the Board’s Circus Circus Casinos, Inc. decision. For example, the Authority previously has held that “no specific format is required,” and that the employee’s request must merely “put the employer on notice that the employee desires representation.” See Norfolk Naval Shipyard, Portsmouth, Va, 35 FLRA 1069, 1074 (1990).

The types of statements made by the employee to his employer in Circus Circus Casinos, Inc. regarding unsuccessful attempts to obtain union representation would likely trigger Weingarten under the Authority’s test.

Going forward in the federal sector, the Authority will most likely construe Weingarten liberally and in a manner consistent with the Board’s Circus Circus Casinos, Inc. decision.

Accordingly, federal agency supervisors should realize that an employee’s references to attempts to obtain union representation should be sufficient to trigger the Weingarten right, even if the employee does not explicitly ask for a union representative at the particular meeting at issue. Agency officials should be cautious in situations where there are indications that an employee may have wanted union representation.

Jeffrey Lorek is a labor and employment litigation attorney for the Department of the Air Force and has published several articles on various labor and employment law topics. The views expressed in this article are solely the views of the author, and do not reflect the views of the government, the Department of Defense, the U.S. Air Force, or

Don’t Pull The Tapes: Employer Dinged By NLRB For Surveilling Employee Union Activity On Video Archives

Article By: David J. Pryzbylski

The National Labor Relations Act (NLRA) puts limits on what employers can do if/when their employees express interest in forming a union in the workplace. Generally, employers cannot threaten employees based on their union activity; interrogate workers about their union activity, sentiments, etc.; make promises to employees to induce them to forgo joining a union; or engage in surveillance (i.e., spying) on workers’ union organizing efforts. To the extent an employer violates the NLRA by engaging in these acts, it can negatively affect union election results and result in other penalties.

A recent decision from the National Labor Relations Board (NLRB) offers a reminder that employers must tread carefully when union activity is afoot in their workplaces. In AdvancePierre Foods, Inc., which was decided by the board on July 19, an employer was found to violate the NLRA when, among other things, it pulled archived video footage at its site upon becoming aware of union activity. During its review of the tapes, it observed two employees passing out union literature in company breakrooms and the company disciplined those employees for doing so. The NLRB found that the employer’s review of archived footage constituted unlawful surveillance of the workers’ union activity. The employer also was found to have unlawfully interrogated employees.

This case serves as an important reminder that there are very specific rules employers must abide by when union activity surfaces in the workplace, and there can be harsh consequences for companies who misstep in this area when trying to remain union-free.

Summary of NLRB Decisions for Week of July 9 – 13, 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

Theatrical Stage Employees Union, Local 2, IATSE (Event Media, Inc., d/b/a Complete Crewing, Inc.)   13-CD-185979; 366 NLRB No. 123)  Chicago, IL, July 9, 2018.

The Board found that this case was not appropriate for resolution under Section 10(k) and quashed the notice of hearing.  The Employer had filed a charge, alleging that Theatrical Stages Employees Union, Local 2 (Stagehands) violated Section 8(b)(4)(D) by threatening to engage in proscribed activity with an object of forcing the Employer to assign certain work to employees represented by Stagehands rather than to employees represented by United Steelworkers, AFL-CIO-CLC, Local 17-Decorators.

The Board found that the evidence failed to establish a traditional jurisdictional dispute between two rival groups of employees claiming the same work, with an innocent employer caught in the middle.  Rather, the Board concluded that the Employer by its own actions—assigning to Stagehands-represented employees work historically performed by Decorators-represented employees—created a work preservation dispute.  Thus, the Board found that the conduct did not give rise to a jurisdictional dispute within the meaning of Sections 10(k) and 8(b)(4)(D).

Charge filed by Event Media, Inc. d/b/a Complete Crewing, Inc.  Members Pearce, McFerran, and Emanuel participated.


Green Apple Supermarket of Jamaica, Inc.  (29-CA-183238 and 29-CA-188130; 366 NLRB No. 124)  Brooklyn, NY, July 11, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by threatening discipline, discharge, and plant closure if employees supported the Union; Section 8(a)(3) and (1) by discriminatorily disciplining and discharging unit employees; and Section 8(a)(5) and (1) by unilaterally establishing a new work schedule and failing to furnish requested relevant information to the Union.  The Board reversed the judge’s findings that the Respondent violated Section 8(a)(3) by its unlawful threats and by more strictly enforcing work rules, and that it unreasonably delayed providing requested relevant information.

Charges filed by United Food and Commercial Workers, Local Union 342, AFL–CIO.  Administrative Law Judge Kenneth W. Chu issued his decision on October 19, 2017.  Members McFerran, Kaplan, and Emanuel participated.


Dura-Line Corporation, a subsidiary of Mexichem  (09-CA-163289, et al.; 366 NLRB No. 126)  Middlesboro, KY, July 12, 2018.  Errata issued July 13, 2018.  Errata   Amended Decision

The Board unanimously reversed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by closing its Middlesboro plant and transferring production, and Section 8(a)(5) and (1) by unilaterally reducing the value of a Thanksgiving gift.  As for the plant closure allegation, the Board found that the Respondent showed that it would have closed the plant and transferred production for myriad business reasons regardless of the Union’s presence and union activity at that facility.  The Board also unanimously adopted the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union notice and an opportunity to bargain over its decision to close the facility, lay off employees, and transfer equipment and work.  Further, a Board majority (Members Kaplan and Emanuel; Member McFerran dissenting) reversed the judge’s finding that the Respondent unlawfully promulgated a confidentiality agreement.  The Board unanimously severed and retained for future resolution the allegation that the Respondent violated Section 8(a)(1) by maintaining the confidentiality agreement, which is allegedly overbroad.  Finally, in the absence of exceptions, the Board unanimously adopted numerous findings that the Respondent violated Section 8(a)(1) by threatening employees and Section 8(a)(4) and (1) by throwing away an employee’s property.

Charges filed by United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, Local 14300-12.  Administrative Law Judge Melissa M. Olivero issued her decision June 20, 2017.  Members McFerran, Kaplan, and Emanuel participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued

C Cases

MV Transportation, Inc.  (28-CA-145067)  Phoenix, AZ, July 11, 2018.  No exceptions having been filed to the May 24, 2018 decision of Administrative Law Judge Charles J. Muhl’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charge filed by an individual.

Shirley Express, LLC and RLS Transportation, LLC, as a single and/or joint employers  (22-CA-141644 and 22-CA-149763)  Newark, NJ, July 12, 2018.  No exceptions having been filed to the March 6, 2018 supplemental decision of Administrative Law Judge Lauren Esposito over the amounts of backpay due the discriminatees, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to pay the amounts set forth in the judge’s recommended Order.  Charges filed by Building Material Teamsters Local 382.


Appellate Court Decisions

Pennsylvania State Corrections Officers Association, Board Case No. 04-CA-037648 (reported at 364 NLRB No. 108) (D.C. Cir. decided July 6, 2018)

In a published opinion in this backpay case, the Court granted the petition for review filed by the association that represents corrections officers employed by the Commonwealth of Pennsylvania, vacated the Board’s supplemental order, and remanded the case to the Board for further proceedings.

This case involves the amount of backpay the association owes five of its former discharged employees as a remedy under a prior order (358 NLRB No. 19) issued in 2012 in which the Board (then-Chairman Pearce and Members Hayes and Griffin) found that the association violated Section 8(a)(5) and (1) by failing to bargain over the effects of its discharge decision with Business Agents Representing State Union Employees Association, the Union representing its employees.  In that prior order, the Board imposed the standard remedy for an effects-bargaining violation, ordering the association to bargain with the Union and pay the five employees limited backpay calculated pursuant to the formula set forth in Transmarine Navigation Corp., 170 NLRB 389 (1968).

In its supplemental order now under review, the Board (then-Chairman Pearce and Member Hirozawa, Member Miscimarra, dissenting in part) found that, although the parties began effects bargaining, the impasse they reached in April 2012, was not genuine because the association had improperly insisted on reducing its backpay obligation below the two-week minimum required by the Board’s 2012 order.  The Board majority then found that backpay continued to accrue for a 26-week period, from late March 2012 until the Union became defunct in September 2012.  Member Miscimarra would have found that the backpay obligation accrued for only two weeks.  Further, the Board unanimously rejected the association’s request to deny backpay to one employee who obtained a new job after being discharged rather than returning to the association to work in a non-substantially equivalent position.

On review, the Court (Senior Circuit Judges Williams and Ginsburg, Circuit Judge Henderson dissenting) held that substantial evidence did not support the Board’s backpay determination.  Holding the issue was not jurisdictionally barred from review by Section 10(e) of the Act, as the Board argued, the majority reached the association’s argument that its offer to pay a full week’s wages, in fact, exceeded the Transmarine minimum because its offer did not include a deduction for interim earnings that is permitted for the remedy, and because it had already paid each employee a week of severance pay.  Agreeing, the Court majority first noted that the “critical question” was whether, in the course of effects bargaining, the association had “sought the union’s agreement to accept less than the Transmarine amount” of two weeks, and that such a determination required “a mathematical proposition” to which “a quantitative analysis is more appropriate.”  The majority then concluded that the association “was not trying to bargain ‘about’ the Transmarine remedy or to ‘reduce’ its Transmarine obligation” because the two weeks of net wages it could have offered to comply with the language of the Transmarine remedy would have been less than the one week of gross wages that the association offered.  “Having made the requisite calculations,” the majority stated, “we necessarily conclude there is not substantial evidence to support the Board’s finding.”  The Court remanded the case for the Board to recalculate the backpay in accordance with the Court’s finding that the parties had reached an impasse that cut off its obligations after two weeks.

In dissent, Judge Henderson wrote to state her views that the Board reasonably found that the backpay period ran for 26 weeks and that the majority’s analysis contained two flaws.  First, she stated that the majority relied on an argument never specifically made by the association—that is, that for each discharged employee one week of gross salary likely exceeded theTransmarine amount of two weeks of net pay.  Second, she stated that a payment of “two weeks’ backpay did not ipso facto mean that the parties reached a lawful impasse or even that the [association] satisfied its full backpay obligation.”

The Court’s opinion is here.

Veritas Health Services Inc. d/b/a Chino Valley Medical Center, Board Case No. 31-CA-107321 (reported at 363 NLRB No. 108) (D.C. Cir. decided July 10, 2018)

In a published opinion, the Court, with the exception of one remedy, enforced the Board’s order issued against this operator of an acute-care hospital in Chino Valley, California, for unlawfully withdrawing recognition from its nurses’ certified representative, United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO.  The Court also denied a petition for review filed by an individual employee whose motion to intervene before the Board had been denied.

The Union’s attempt to represent this unit of nurses has a lengthy history that includes two prior, court-enforced Board orders.  In the representation case, after the Union won a second election in 2010, the Board certified the Union and the Employer refused to bargain in order to seek review.  The Board’s subsequent unfair-labor-practice order (356 NLRB No. 137) required the Employer to bargain, and extended the certification period to run one year from the date the Employer began to bargain in good faith.  On review, the D.C. Circuit enforced the Board’s order.

While that case was pending before the Board, the General Counsel issued another complaint, this one alleging that the Employer committed myriad unfair labor practices during the Union’s 2010 organizing campaign.  The Board found that the Employer violated the Act as alleged, and the Ninth Circuit affirmed.

In the instant case, after the D.C. Circuit upheld the Board’s certification of the Union, the Union requested bargaining on March 20, 2012.  Discussions ensued over when to begin contract negotiations and over information the Union requested to prepare for bargaining.  The parties held their first negotiating session on June 13, 2013.  Over the course of the next year, the parties met over 25 times, and by May 24, 2013, they had reached agreement on all but a handful of contract articles.  On June 10, 2013, the Union resolved the remaining issues in a letter to the Employer that agreed to all outstanding terms.  In a return letter that same day, the Employer withdrew recognition, stating that it had “received objective evidence on June 9, 2013 that a majority of employees … no longer wish to be represented by [the union].”  On those facts, the Board (then-Chairman Pearce and Members Hirozawa and McFerran), in agreement with the Administrative Law Judge, found that the Employer’s withdrawal of recognition violated Section 8(a)(5) and (1).  The Board’s finding was based on three independent grounds:  (1) the decertification petition on which Employer relied was tainted by its unremedied unfair labor practices committed during the 2010 organizing campaign; (2) the Employer withdrew recognition on June 9, 2013, during the Union’s extended certification year that began to run on June 13, 2012, the first day of contract negotiations; and (3) the Employer failed to show by objective evidence that the Union had lost majority support when it withdrew recognition.  The Board’s order included a number of special remedies, such as a broad cease-and-desist order, a general affirmative bargaining order, a mailing of the remedial notice to all affected employees, a notice-reading requirement, and payment of costs and expenses incurred in the investigation, preparation, presentation, and conduct of the unfair-labor-practice proceeding.  Finally, the Board found that the judge did not abuse his discretion in denying a motion to intervene that was filed by a non-charging party employee.

On review, the Court (Circuit Judges Griffith, Millett, and Pillard) held that substantial evidence supported the Board’s withdrawal-of-recognition finding on the first two bases, and thus found it unnecessary to consider the Employer’s contentions regarding the third.  Regarding the certification year, the Court agreed with the Board that it began to run on the parties’ first day of contract negotiations, June 13, 2012, and that the Employer withdrew recognition on June 10, 2013—prior to the close of the certification year, and thus at a time when the Union enjoyed an irrebuttable presumption of majority support.  In so holding, the Court rejected the Employer’s various contentions that the certification year had begun earlier.  Next, under the factors ofMaster Slack Corp., 271 NLRB 78 (1984), the Court upheld the Board’s finding that the Employer’s unremedied unfair labor practices committed during the 2010 organizing campaign tainted the decertification petition and rendered it unreliable evidence of employee support.  In particular, the Court held that “the nature of the unfair labor practices and their tendency to cause disaffection” from the Union “weighed heavily in favor of the Board’s conclusion,” noting that they were precisely “the types of violations that have detrimental and lasting effects,” such as the retaliatory discharge of a prominent Union supporter, the threat to shutter the hospital, and the curtailment of employee benefits.

Regarding the remedies, the Court summarily upheld the Board’s broad cease-and-desist order and the notice-mailing requirement, neither of which the Employer challenged on review.  On its merits, the Court upheld the notice-reading requirement.  Quoting portions of the Board’s analysis, the Court explained that the “unfair labor practices were numerous and egregious, rising to the level of ‘repeated unlawful conduct’ that ‘likely had the effect of chilling employees’ Section 7 activities,’ making such a reading necessary ‘to fully dissipate the[] coercive effect’ of [the employer]’s accumulated misdeeds.”  Further, in light of intervening in-circuit precedent on the issue of litigation expenses, HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir. 2016), and Camelot Terrace, Inc. & Galesburg Terrace, Inc. v. NLRB, 824 F.3d 1085 (D.C. Cir. 2016), the Court accepted the Board’s determination not to seek enforcement of that portion of its order.

Finally, the Court addressed the petition for review filed by the individual employee who circulated the decertification petition.  The individual employee argued that the Board’s denial of his motion to intervene violated his due process rights because he was denied the opportunity to introduce evidence and testify that the Union had, in fact, loss majority support.  In response, the Court stated that it need not decide whether the ALJ abused his discretion in denying the individual employee’s motion to intervene because, even if he had, the individual employee has shown “no prejudice flowing from the denial.”  In a concurring opinion, Judge Millet joined the panel’s decision in full, but wrote separately to state her concern that the Board should establish a “discernible, consistent standard for granting and denying intervention” in Board proceedings.

The Court’s opinion is here.


Administrative Law Judge Decisions

Pacific Maritime Association  (21-CA-197882 and 21-CA-198530; JD-43-18)  Long Beach, CA.  Administrative Law Judge Andrew S. Gollin issued his decision on July 9, 2018.  Charges filed by ILWU, Warehouse, Processing and Distribution Workers’ Union, Local 26.

Wyman Gordon Pennsylvania, LLC  (04-CA-182126, et al.; JD-44-18)  Plains, PA.  Administrative Law Judge Arthur J. Amchan issued his decision on July 13, 2018.  Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC.

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