BUSINESS TEL:   281.593.1690

BUSINESS FAX:  832.218.1996

Breaking News

Today’s Labor Updates, June 10, 2017

Summary of NLRB Decisions for Week of May 30 – June 2, 2017.

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

Teachers College, Columbia University  (02-CA-164870; 365 NLRB No. 86)  New York, NY, May 31, 2017.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide information requested by the Union.

Charge filed by Local 2110, United Auto Workers.  Administrative Law Judge John T. Giannopoulos issued his decision on December 30, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

***

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

CTS Construction, Inc.  (09-RD-187368)  Cincinnati, OH, May 31, 2017.  The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s Request for Review of the Regional Director’s administrative dismissal of the decertification petition as it raised no substantial issues warranting review. The Regional Director had dismissed the petition on the basis that it had been filed before a reasonable time for bargaining had elapsed under an agreement settling an unfair labor practice charge against the Employer.  Relying on the factors set out in Poole Foundry & Machine Co., 95 NLRB 34 (1951), the majority noted that the petition had been filed only 34 days after the parties had entered into the settlement agreement which mandated a 60-day posting period, and the parties had only met once and had reached a tentative agreement; these factors indicated that a reasonable time for bargaining had not elapsed.  In addition, Member McFerran noted that, under Hertz Equipment Corp., 328 NLRB 28 (1999), no question concerning representation can be raised during the posting period of a settlement agreement.  Dissenting, Chairman Miscimarra would grant review, and find that a reasonable time for bargaining had elapsed under Poole Foundry & Machine Co..  He would rely on the negotiation concerning a successor agreement (rather than an initial contract); the lack of complexity in the issues to be bargained; and the fact that the parties had reached a tentative agreement.  Chairman Miscimarra would find that the latter circumstance especially indicates that no further bargaining was necessary and therefore a reasonable time for bargaining had occurred.

Petitioner – an Individual.  Union – Communications Workers of America, AFL-CIO, (CWA), Local 4322.  Chairman Miscimarra and Members Pearce and McFerran participated.

University of Chicago  (13-RC-198365)  Chicago, IL, June 1, 2017.  The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s Expedited Request for Review on the merits as it raised no substantial issues warranting review.  The Employer’s Motion to Stay the Election and/or Impound Ballots, or, in the Alternative, For Remand to the Regional Director was accordingly also denied as moot.  The majority agreed with the Regional Director that the Employer’s offer of proof failed to present grounds for concluding that the library clerks are not common-law employees or sufficient facts to conclude that they should be deemed ineligible as temporary or casual employees.  Chairman Miscimarra, dissenting, would grant the Employer’s Request for Review because, in his view, substantial issues exist regarding the extent to which the bargaining unit consists of students whose positions are closely related to their education and therefore are similar to the unit members in Columbia University, 364 NLRB No. 90 (2016), and Yale University, 365 NLRB No. 40 (2016).  To the extent that they are, Chairman Miscimarra would find that the unit is inappropriate for the reasons expressed in his dissents in those cases.  Chairman Miscimarra would also grant review with respect to whether the petitioned-for individuals are temporary employees and the failure to permit the Employer to present evidence pursuant to the provisions in the Board’s Election Rule governing “offers of proof.”  See Election Rule, 79 Fed. Reg. 74308, 74446-74448 (2014) (dissenting views of then-Member Miscimarra and former Member Johnson).  Chairman Miscimarra also would grant the Employer’s Motion to Stay the Election because all parties (particularly individuals included in the petitioned-for unit) would benefit from the Board’s resolution of election-related issues before voting takes place.

Petitioner – International Brotherhood of Teamsters, Local 743.  Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Wan Hao Eastern Corp. and Shi Lin Xiang Seafood, Inc., alter egos and/or predecessor/successor and/or joint employers  (29-CA-179777)  Flushing, NY, June 1, 2017.  The Board denied the Employer’s petition to revoke the subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation, described with sufficient particularity the evidence sought, and there was no other legal basis for revoking the subpoena.  The Board evaluated the subpoena in light of the Region’s agreement to limit the requests to the time period starting from the Employer’s date of incorporation.

Charge filed by Flushing Workers Center.  Chairman Miscimarra and Members Pearce and McFerran participated.

***

Appellate Court Decisions

Rochester Regional Joint Board, Local 14A, Board Case No. 03-CC-137244 (reported at 363 NLRB No. 179) (2d Cir. decided May 30, 2017)

In an unpublished summary order, the Court enforced the Board’s order issued against Rochester Regional Joint Board Local 14A for violations pertaining to its collective-bargaining agreement with Xerox Corporation, the manufacturer and seller of office equipment, which covered the Employer’s production and maintenance employees at facilities in Monroe County, New York.

The parties’ collective-bargaining agreement included a provision entitled “successorship,” which prohibited the “transfer by sale, lease or otherwise of ownership of or operational control” of the Employer’s business unless the transferee assumed the obligations of the collective-bargaining agreement, and also required notice be given to the Union beforehand.  In November 2012, Xerox entered into a leasing contract with Jones Lang LaSalle Americas, Inc. (JLL), a national commercial real estate services provider, to provide services that included HVAC maintenance, cleaning, moving, docks, and ancillary services at the Employer’s facility in Webster, New York.  Pursuant to the contract with JLL, the scope of work to be performed would remain under the Employer’s control.  Thereafter, the Union filed a grievance alleging that the Employer violated the contract by transferring operational control over the maintenance functions at the facility without providing the requisite notice.  The Union also initiated a civil action and filed a petition for a preliminary injunction in the United States District Court for the Western District of New York seeking to enjoin the Employer’s subcontracting to JLL until its grievance had been arbitrated.

The Administrative Law Judge interpreted the provision of the collective-bargaining agreement to mean that any lease was a transfer of business subject to its requirements, including adopting the JLL contact, and therefore found that the Union violated Section 8(e) by entering into the provision that restricted the Employer’s right to enter into any lease with a secondary employer.  Further, the judge found that the Union violated Section 8(b)(4)(ii)(A) by filing the grievance to enforce the unlawful contract provision and by filing the civil action.  Finally, the judge found that the Union violated Section 8(b)(4)(ii)(B) by filing the grievance and lawsuit to enforce its interpretation of contract, and by taking those actions with the objective of precluding the Employer from doing business with JLL until after arbitration.  The Union filed exceptions with the Board disputing the judge’s interpretation of the contract provision and the conclusion that the contract provision violated Section 8(e).

On review, the Board reversed with respect to Section 8(e), finding that the contract provision did not restrict the Employer from entering into any lease with a secondary employer, but instead that by its express terms was limited to “transfers of ownership . . . or operational control.”  Therefore, the Board found the provision was not unlawful because “Section 8(e) does not include the sale or transfer of a business.”  Further, the Board summarily adopted the judge’s Section 8(b)(4)(ii)(A) and (B) findings, noting that the Union filed no exceptions to them, and rejected the Union’s contention, which was made for the first time in the Union’s reply brief, that it had not waived its right to challenge the Section 8(b)(4)(ii)(A) and (B) findings.

On review, the Court rejected the Union’s argument that its exceptions to the Section 8(e) finding implicitly encompassed challenges to the Section 8(b)(4)(ii)(A) and (B) findings and that therefore its challenges to those violations were not jurisdictionally barred from Court review under Section 10(e).  Rather, the Court held, the legality of the contract provision “presents a legal issue distinct from the lawfulness of the Union’s attempts to exact compliance with its interpretation of the contract” through the grievance and civil action, and the Board’s “reversal of one did not implicitly undermine the other.”  Accordingly, the Court enforced in full.

The Court’s decision is here.

Whole Foods Market, Inc., Board Case No. 01-CA-096965 (reported at 363 NLRB No. 87) (2d Cir. decided June 1, 2017)

In an unpublished summary order, the Court enforced the Board’s order issued against this retailer and distributor of foods.

The Employer maintains work rules and policies in its general information guide that apply to all employees.  Taken together, a number of those rules act to prohibit all recording in the workplace, both audio and video, absent prior approval.  The Board (then-Chairman Pearce and Member Hirozawa; then-Member Miscimarra, dissenting) found, under the framework of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), that the Employer violated Section 8(a)(1) by maintaining overly broad, no-recording rules that employees would reasonably read to interfere with their exercise of Section 7 rights.

On review, the Court agreed:  “As written, those policies prevent ‘employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent application of employer rules,’” quoting Rio All-Suites Hotel & Casino, 362 NLRB No. 190 (2015) (holding that employee photographing and videotaping is protected “when employees are acting in concert for their mutual aid and protection and no overriding employer interest is present”).  Moreover, the Court explained that despite the Employer’s stated purpose of the policies—“to promote employee communication in the workplace—the Board reasonably concluded that the policies’ overbroad language could ‘chill’ an employee’s exercise of her Section 7 rights because the policies as written are not limited to controlling those activities in which employees are not acting in concert.”

The Court’s decision may be found here.

Good Samaritan Medical Center, Case No. 01-CA-082367, and 1199 SEIU United Healthcare Workers East, Case No. 01-CB-082365 (reported at 361 NLRB No. 145) (1st Cir. decided May 31, 2017)

In a published opinion, the Court denied enforcement of the Board’s order issued against this hospital in Brockton, Massachusetts, and the Union representing a unit of its hospital employees.  The Board (then-Member Miscimarra and Members Johnson and Schiffer) found that the discharge of a new employee who, at an orientation session, questioned a union representative’s incorrect statement that all new employees needed to become union members, violated Section 8(a)(3) and (1), and Section 8(b)(1)(A) and (2).  In doing so, the Board clarified that to determine whether union conduct violates Section 8(b)(2), the Board has applied either a duty-of-fair-representation framework or a Wright Line analysis, and that under either, the Union’s conduct in causing the employee’s discharge was unlawful.  Regarding the Employer’s conduct, the Board applied to the facts of the case the principle that an Employer acts unlawfully when it discharges an employee at the request of the Union when it has reasonable grounds to believe that the request was unlawful, citing Palmer House Hilton, 353 NLRB 851, 852 (2009), aff’d, 356 NLRB No. 2 (2010).  The Board also found that the Employer’s application of its civility policy to discharge the employee rendered the policy unlawful under Section 8(a)(1), and that the Union violated Section 8(b)(2) when a Union representative later threatened the employee with retaliation.  The Employer and Union each filed a petition for review.

On review, the Court (Circuit Judge Torruella and District Judge Lisi; Circuit Judge Barron, concurring in part and dissenting in part) concluded that substantial evidence on the record as a whole did not support the Board’s findings, principally because there was significant contradictory evidence that had gone unaddressed by the Board’s decision and that at times the Board’s analysis was not adequately explained.  Circuit Judge Barron joined the Court’s opinion in all aspects except that he would have remanded to the Board for further explanation on the issue of whether the Union met its burden of showing it had not unlawfully caused the Employer to discharge the employee.

The Court’s opinion is here (link is external).

***

Administrative Law Judge Decisions

Jam Productions, Ltd. and Event Productions, Inc., a single employer (13-CA-177838; JD-42-17) Chicago, IL, May 30, 2017.  Errata to May 26, 2017 Administrative Law Judge Michael A. Rosas’ decision.  Errata   Amended Decision.

Jon P. Westrum d/b/a J. Westrum Electric and JWE LLC  (18-CA-182656; JD-44-17)  Anoka, MN.  Administrative Law Judge Sharon Levinson Steckler issued her decision on May 31, 2017.  Charge filed by International Brotherhood of Electrical Workers, Local 292.

Oxford Electronics, Inc., d/b/a Oxford Airport Technical Services and Worldwide Flight Services, Inc., joint employers  (13-CA-115933 and 13-CB-115935; JD-43-17)  Elmont, NY.  Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on May 31, 2017.  Charges filed by International Union of Operating Engineers Local 399, AFL-CIO.

Glades Electric Cooperative, Inc.  (12-CA-168580, et al.; JD-45-17)  Lake Placid, Moore Haven and Okeechobee, FL.  Administrative Law Judge Charles J. Muhl issued his decision on June 1, 2017.  Charges filed by International Brotherhood of Electrical Workers, Local 1933, AFL-CIO.

June 8, 2017

Labor Board Splits on Production of Union Voter Phone Numbers

By Lawrence E. Dubé

A company facing a vote on unionization may have to ask its supervisors to provide a list of employee phone numbers so it can pass them on to the union, a divided NLRB held ( RHCG Safety Corp. , 2017 BL 192520, 365 N.L.R.B. No. 88, 6/7/17 ).

RHCG Safety Corp. should have retrieved employees’ phone numbers from the company’s supervisors, who had the numbers listed on their own telephones, members Mark Gaston Pearce (D) and Lauren McFerran (D) said in a 2-1 ruling. The New York construction company’s failure to assemble the information justified setting aside a union’s 46-36 election loss, they said.

Chairman Philip A. Miscimarra (R) disagreed. Miscimarra said he wouldn’t require an employer to canvass its supervisors for the information in the very short pre-election period permitted by the NLRB rule.

The National Labor Relations Board nearly two and a half years ago adopted a rule that an employer must give a union the phone numbers of eligible voters, but the NLRB is now split 2-1 on what information is “available” to the employer. The sharp disagreement suggests the issue will continue to divide the board.

First Look at Scope of ‘Available’ Phone Numbers

Miscimarra dissented from the 2014 rulemaking, and he dissented from the board’s ruling on the omission of telephone numbers in the current case.

The board had never before considered information on supervisors’ phones to be “available” to the employer, Miscimarra said. He warned that because the board’s rules now allow the agency to wait until after an election to identify supervisors, employers may be uncertain before a union vote whether an individual is a supervisor whose phone should be searched for employee phone numbers or a rank-and-file employee who has a right to privacy.

The board’s rules only allow an employer two business days after the approval of an election agreement to furnish the voter list, the chairman said. It was “unrealistic” to require some 14 RHCG supervisors to search their phones for employee phone numbers.

“Either way,” Miscimarra argued, “today’s decision will predictably result in more litigation, more expense for the parties, and … greater uncertainty and delay” in NLRB election cases.

The Democratic majority’s interpretation of the NLRB rule may not be controlling for very long. President Donald Trump is expected to appoint two Republicans to board vacancies this year, and Miscimarra may be able to secure a new majority to support his critical view of the election rule.

Voter List Dispute in Union Election

Laborers’ International Union of North America Local 79 filed a petition to represent RHCG’s employees and the company agreed to an NLRB election.

Local 79 filed objections to the election result and argued RHCG failed to comply with the board’s 2014 rule requiring an employer to produce an employee list with names, addresses, and ”available home and personal cellular (‘cell’) telephone numbers of all eligible voters.”

The employer produced a list, but 80 of the 84 addresses were incorrect. The board agreed the high error rate justified holding a new election.

But Pearce and McFerran said RHCG’s failure to put any employee phone numbers on the voter list provided an independent basis for setting the election aside.

The company argued it didn’t have the phone numbers in its computer database, but the board majority said nothing in the NLRB rule requires that “available” information be contained in such a database.

RHCG supervisors kept and used employees’ personal phone numbers for work-related communications, but the company never asked its supervisors to provide the information for use in the required voter list, Pearce and McFerran said.

Attorneys for RHCG and LIUNA Local 79 didn’t respond June 8 to requests for comment on the decision.

David A. Tango of Genova Burns in Newark, N.J., represented RHCG Safety Corp. in the representation case. Tamir Rosenblum in New York represented Laborers Local 79.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

For More Information

Text of the decision is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_RHCG_Safety_Corp_365_NLRB_No_88_2017_BL_19252?doc_id=XJCQI21C.



Republican Lawmakers Introduce Three House Bills To Roll Back National Labor Relations Board Quickie Election Rules

By Seth Borden on June 8, 2017

A trio of bills has been introduced in the House of Representatives to amend the National Labor Relations Act in an effort to roll back some of the more aggressive changes to the union representation election process implemented by the Obama Board.  The Workforce Democracy and Fairness Act (H.R. 2776), Employee Privacy Protection Act (H.R. 2775), and Employee Rights Act (H.R. 2723), have all been introduced and referred to the House Committee on Education and the Workforce, which will hold a legislative hearing on the bills next Wednesday, June 14, 2017.

The Workforce Democracy and Fairness Act, introduced by Rep. Tim Walberg (R-MI), is described as a bill to “amend the National Labor Relations Board with respect to the timing of elections and pre-election hearings and the identification of pre-election issues.” The text of the bill would amend the Act to require that in all representation (RC) elections, within 14 days of the filing of a petition, an “appropriate hearing” would be held. That hearing would be:

non-adversarial with the hearing officer charged, in collaboration with the parties, with the responsibility of identifying any relevant and material pre-election issues and thereafter making a full record thereon.

This change to the statute would restore the decades-old procedures, pre-dating the April 2015 “Quickie Election” rules, whereby the Board would seek to resolve significant legal issues likely to impact the election prior to the conduct of the election.  This bill would also require a period of at least 35 days between a petition and the conduct of an election — up from the current median, 23 days, and the prospect under the current rules of an election as soon as 13 days after the filing of a petition.

Moreover, the second half of the bill would expressly incorporate the Board’s traditional “community of interest” factors for determining the appropriate unit in a representation proceeding. This inclusion would restore the decades-old standards cast aside by Board in its 2011 Specialty Healthcare decision to facilitate micro-unit organizing.

The Employee Privacy Protection Act, introduced by Rep. Joe Wilson (R-SC), seeks to “amend the National Labor Relations Act to require that lists of employees eligible to vote in organizing elections be provided to the National Labor Relations Board,” among other protections.  Prior to 2015, the Board’s longstanding Excelsior Underwear doctrine required an employer to provide to the Board, within 7 days of the Direction of Election, a list of all employees eligible to vote, including a home address for each.  The Board’s April 2015 “Quickie” rules modified this, so that the employer is required to provide the list within two days, and directly to the petitioning union.  Moreover, the alphabetized list must include

the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cell telephone numbers) of all eligible voters[.]

This bill would for the first time memorialize the obligation in the statute itself, but would restore the seven day time frame and the Board as recipient of the information. In addition, it would require that only one piece of contact information be provided for each employee, to be chosen by the employee him or herself.

Finally, the Employee Rights Act, introduced by Rep. Phil Roe (R-TN), purports to “provide protections for workers with respect to their right to select or refrain from selecting representation by a labor organization.”  The text of the bill would amend the National Labor Relations Act, among other things:

  • to allow recognition only via secret ballot election conducted by the Board;
  • to require selection by a majority of eligible unit employees — not just those voting;
  • to require elections be held in certified and recognized units which have experienced turnover or expansion in excess of 50 percent;
  • to require inclusion only of names and home addresses on voter eligibility lists, and to provide for an employee opt-out mechanism;
  • to restore entitlement to a pre-election hearing to resolve material factual issues;
  • to provide tougher financial penalties for union’s committing unfair labor practices; and
  • to require opt-in by employees who wish to have union dues used for non-representational activities.

These bills were previously introduced in the 114th Congress, but went no further after referral to committee.  The Health, Education, Labor & Pension Subcommittee of the Education and Workforce Committee will hold its legislative hearing on these bills next Wednesday morning, June 14, 2017, at 10:15 a.m., in Room 2175, Rayburn House Office Building.

May 2017 Select events and news from the world of organized labor

Organizing

National Labor Relations Board (NLRB or the Board) statistics show that the Board’s “quickie” election rule, implemented in 2015, has only minimally affected the union win rate in representation elections. The rule was intended to shorten the time between the filing of a representation petition and the vote. Elections over the past year were held, on average, 24 days after the filing of a petition, down from 39 days the year before the rule was implemented. Nonetheless, the increased pace led to less than a one percent rise in the union win rate, despite the fact that unions have historically won quick elections at a higher rate than more drawn out elections. Unions continue to win about 67 percent of representation elections.

Service Employees International Union (SEIU), Local 500 withdrew its petition to hold a representation election for George Washington University’s student resident advisors, citing fears that students would not participate due to exams. The union intends to refile at a later date. NLRB Regional Director Sean R. Marshall ruled in April that undergraduate resident advisors can unionize because they are university employees.

United Food and Commercial Workers (UFCW), Local 555, Oregon’s largest private sector union, completed a campaign to organize the remaining non-union employees at the state’s Safeway and Albertsons stores. The campaign added 4,400 members to Local 555’s membership. Throughout the campaign, the companies remained neutral and organizers were allowed access to employees at work.

NLRB Regional Director John Walsh decided that most Boston College graduate students are eligible to vote whether they want to be represented by the UAW, rejecting the Boston College’s claim that it is exempt from NLRB jurisdiction due to its status as a religious institution. The Regional Director reasoned that most graduate assistants in research and teaching positions do not fulfill any role in furthering the University’s religious mission. Graduate students in the university’s theology department, however, will be excluded from the union election because they were deemed to further the institution’s religious mission.

Tufts University Arts and Sciences graduate students voted 129-84 in favor of affiliating with the SEIU. The SEIU already represents the university’s full- and part-time non-tenure-track professors.

NLRB Regional Director Peter Sung Ohr granted a petition by Teamsters, Local 743, to hold a representation election for 226 student-employees of the University of Chicago libraries, dismissing the University’s objection that student-employees are not employees under the National Labor Relations Act (NLRA or the Act), and that allowing students to unionize would change the predominantly educational nature of their relationship with the university.

Strikes & Labor Disputes

Rochester, Minn.-area sheet metal workers represented by International Association Sheet Metal, Air, Rail, and Transportation Workers, Local 10, stuck down 10 area businesses, including Brogan Heating Air Conditioning, upon the expiration of their collective bargaining agreement.

Long Island-based beer distributor Clare Rose Inc. announced plans to permanently replace striking warehouse workers, drivers, and summer helpers represented by the International Brotherhood of Teamsters, Local 812.

40,000 Communication Workers of America (CWA) members engaged in a three-day strike after AT&T Inc. missed a deadline to present new proposals for union contracts covering the company’s wireless, landline telephone, and DirecTV businesses.

Security guards at Chicago’s Navy Pier went on strike after the new security guard contractor, Allied Universal, refused to recognize a collective bargaining agreement between Teamsters, Local 727 and SMG, Navy Pier’s previous security guard contractor.

Westinghouse Electric Co. locked out 172 workers represented by International Brotherhood of Boilermakers (Boilermakers), Local 651, upon reaching a bargaining deadlock with the union. Although the parties agreed to extend the expired contract while negotiations continued, Westinghouse terminated the extension nine days early, after the union rejected the company’s “last, best, and final contract offer.”

Major Contract Settlements & Negotiations

According to Bloomberg BNA, as of May 15, average first year wages increased 2.5 percent in 2017, compared to 2.7 percent in 2016. Median first year wages increased 2.3 percent, compared to 2.5 percent in 2016, and the weighted average increased 2.7 percent, compared to 4.3 percent in 2016. Average first year wages increased 2.8 percent once construction and state and local government contracts were excluded, compared to 3.1 percent in 2016. Median first year wages, when the sectors were excluded, increased 2.5 percent, down from 2.8 percent in 2016, and the weighted average increased 2.6 percent, down from 4.7 percent in 2016. Factoring in lump sum payments, average first year wages increased 2.8 percent, compared to 2.9 percent in 2016. Median first year wages increased 2.5 percent, the same as in 2016, while weighted average wages increased 2.8 percent, down from 4.4 percent in 2016. Once construction and state and local government contracts are excluded, wages including lump sums increased 3.1 percent, down from 3.5 percent in 2016, while the median wages increased 2.7 percent, down from 3.0 percent in 2016, and the weighted average increased 3.4 percent, down from 4.8 percent in 2016.

The Writers Guild reached an agreement with major media broadcasters, including CBS, 21st Century Fox Inc., and AMC Networks Inc., avoiding a strike as the broadcasters compete to keep viewers and advertisers. The agreement provides writers with pay increases, more residual income from show reruns, and higher health plan contributions. The last screen writers’ strike, which lasted 100 days in the 2007-2008 season, cost the entertainment industry $2 billion.

SEIU Healthcare Illinois reached an agreement with the Illinois Association of Healthcare Facilities, avoiding what would have been the largest strike of nursing-care workers in U.S. history. SEIU-represented nursing home workers had been working for more than a year without a contract by the time the deal was reached. Ninety-seven percent of the workers voted to ratify the new three-year contract, covering 10,000 caregivers across 103 Illinois nursing homes. The contract provides for 20 to 40 percent wage increases over the term of the agreement, greater accountability for safe staffing standards, a 40 percent increase over the term of the contract in employer pension contributions, and expanded workers’ rights and on-the-job protections.

St. Rose Hospital in Hayward, Calif. reached a four-year agreement with 300 California Nurses Association (CNA)-represented nurses. The agreement provides the nurses with a 20 percent wage increase over the life of the contract, which will raise the average wage for a nurse with five years’ experience to $60.43 per hour. The contract also provides for lower health insurance premiums, which will drop from 13.5 percent to no more than eight percent, and lower health insurance deductibles, which will drop by half. Nurses’ paid time off will increase by 54 hours to 76 hours annually, depending on years of service, under the contract.

About 1,000 members of United Steelworkers (USW), Locals 164 (Des Moines, Iowa), 754 (Freeport, Ill.), and 890 (Bryan, Ohio), approved five-year contracts with Titan International, Inc. The contract is retroactive to November 16, 2016, providing workers a $1,100 signing bonus, wage increases in the third, fourth, and fifth years of the contract, and health care coverage, the terms of which differ slightly for each union local.

American Crystal Sugar Co. employees represented by the Bakery, Confectionery, and Tobacco Workers Union approved a five-year contract providing employees a $2,250 signing bonus, three percent raises in each of the first four years of the contract, and a 2.75 percent raise in the fifth year.

IBEW members ratified a five-year contract with AT&T, covering 5,000 workers in Illinois and Northwest Indiana. The contract provides workers a $1,000 signing bonus and wage increases totaling 13.25 percent over five years. For employees with 401(k) plans, the agreement provides for 80 percent employer matches of up to six percent of workers’ wages. Employees on traditional pension plans will receive a one percent pension band increase each year through 2022. The contract maintains employees’ existing medical plan coverage and provides new options for contributions and deductibles. Separately, AT&T committed to hiring 1,000 additional IBEW members over the next five years.

Administrative, Court & Other Decisions

The U.S. Court of Appeals for the D.C. Circuit affirmed an NLRB decision that two Las Vegas airport restaurant workers did not suffer arbitrary discrimination when the Culinary Workers Union, Local 226, and the Bartenders Union, Local 165, denied their over-the-phone requests for the dates they signed their dues-check off authorization cards. The workers argued that the unions’ requirement that such requests be submitted in writing discriminates against members who wish to leave the unions, since members must have their authorization dates to quit. The NLRB found the policies reasonable in light of privacy and efficiency concerns. Ruisi, et al. v. NLRB.

The D.C. Circuit upheld the NLRB’s decision that Wilkes-Barre Hospital Company violated the NLRA by unilaterally ending longevity-based pay increases to union-represented nurses upon the expiration of a collective bargaining agreement. The court held that an employer cannot unilaterally change the terms and conditions of employment while it is bargaining with a union to replace an expired contract. The circuit court determined that the hospital had not reached an impasse or a new agreement with PASNAP, and had therefore violated the NLRA by unilaterally ending the pay increases. The court found that the nurses are entitled to back pay plus interest dating back to January 2014. Wilkes-Barr Hospital Co. v. NLRB.

The D.C. Circuit remanded an NLRB decision that Hawaiian Dredging Construction Co. illegally fired 13 members of Boilermakers, Local 627, because of their union membership, in violation of the NLRA. The court held that the NLRB did not adequately consider the Administrative Law Judge’s (ALJ’s) finding that Hawaiian Dredging’s conduct was consistent with its longstanding, 20-year practice of not employing construction craft workers in the absence of a union contract. Hawaiian Dredging Construction Co. v. NLRB.

The Ninth Circuit held that retired American Airlines and American Eagle Airlines workers who accepted buyouts from the airlines failed to show that the TWU violated its duty by not awarding them stock that was later distributed to union members in exchange for labor cost concessions negotiated while the airlines were in Chapter 11 bankruptcy. The court found that the retired workers failed to provide evidence that the TWU acted arbitrarily or in bad faith, or that it discriminated against them by waiting to develop a stock distribution plan until after the airlines merged with U.S. Airways Group Inc., when the value of the company’s stock became clearer. Demetris v. Transportation Workers.

The U.S. Court of Appeals for the Seventh Circuit ruled that a union-represented cemetery employee could bring a Fair Labor Standards Act (FLSA) claim without exhausting grievance procedures set out in the employee’s collective bargaining agreement. Following Supreme Court precedent, the circuit court reasoned that a collective bargaining agreement can waive union-represented workers’ statutory right to sue, but only if the agreement explicitly states that workers must resolve such claims through a grievance or an arbitration process. The employee’s contract did not contain a clear statement to that effect. Vega v. New Forest Home Cemetery, LLC.

The Sixth Circuit affirmed an NLRB holding that Alternative Entertainment, Inc., a satellite television provider, violated its employees’ right to engage in concerted activity for mutual aid or protection when it required them to sign arbitration agreements that waived their right to pursue job-related class or collective actions against the company. The Sixth Circuit joins the Seventh and Ninth Circuits in endorsing the NLRB’s position on class waivers. The Fifth and Eighth Circuits have held that the NLRB’s position on class waivers violates the Federal Arbitration Act. The Supreme Court is expected to review the issue. NLRB v. Alt. Entm’t, Inc.

The Third Circuit ruled that union-represented nursing assistants do not have to arbitrate their federal and state unpaid overtime claims against a New Jersey assisted living facility, despite language to the contrary in their collective bargaining agreement’s arbitration clause. The court held that absent a “clear and unmistakable waiver” in the agreement of the right to pursue the claims in court, a court cannot compel arbitration of claims that do not depend on the disputed interpretation of a contract provision. Because the nursing assistants did not explicitly waive their right to sue on FLSA or state law wage-and-hour claims, the court held that they may pursue their claims for alleged miscalculated overtime and unpaid interrupted meal breaks in court. Jones v. SCO Silvercare Ops. LLC.

The Second Circuit upheld an NLRB decision that Whole Foods Market Group, Inc. illegally prohibited employees from electronically recording conversations without management approval. Upholding the NLRB’s finding that Whole Food’s intent to promote “spontaneous and honest dialogue” did not justify the overbroad rule, the court instructed Whole Foods to narrow the scope of its rule, noting that the NLRA does not preclude all workplace recording policies. Whole Foods Mkt. Grp., Inc. v. NLRB.

The Southern District of New York struck down a New York City law that permitted car washes that entered into collective bargaining agreements with workers to pay less for business licenses than businesses that do not engage in collective bargaining. Under the Car Wash Accountability Law, car washes that did not operate under a collective bargaining agreement were required to post a $150,000 surety bond to obtain an operating license. Car washes operating under a collective bargaining agreement and car washes that agreed to monthly pay practice audits by third-party monitors only had to post a $30,000 bond. The court held that the law was preempted by the NLRA, which prohibits state and local governments from intruding on the labor-management bargaining process. Ass’n of Car Wash Owners Inc. v. City of New York.

A federal judge for the District of Massachusetts held that a restaurant server had a right under the Labor-Management Reporting and Disclosure Act of 1959 to inspect contracts between her union, UNITE HERE, Local 26, and 36 employers, but not to take notes about the contracts. In determining that the union lawfully denied the server permission to take notes, the court reasoned that union employees’ statutory right to inspection did not provide an “explicit warrant” for note taking. DOL v. Local Union 26.

A federal judge for the Southern District of Florida issued a temporary restraining order (TRO) against the Air Line Pilots Association International (ALPA), ordering the union to stop interfering with Spirit Airlines’ business. Spirit accuses the union of violating the Railway Labor Act, which prohibits slowdowns and strikes during collective bargaining. The airline has been in contract negotiations with ALPA since February 2015. Spirit Airlines sought the TRO when pilots began refusing overtime and unassigned flying, resulting in 300 flight cancellations, affecting 20,000 customers, and resulting in $8.5 million in lost revenue. Spirit Airlines v. Air Line Pilots Association, International, et al.

The Michigan Court of Appeals held teachers may quit the Michigan Education Association at any time, not just during a one-month window specified in the union’s bylaws. Overturning eight Michigan Employment Relations Commission opinions on the subject, the court determined that the state’s “right to work” laws prohibit enforcement of the restrictive bylaws. Saginaw Educ. Ass’n v. Eady-Miskiewicz.

The NLRB unanimously rejected a petition to revisit the question of whether nonunion employees are entitled to Weingarten rights, which enable union members to insist on having a representative present during investigatory interviews that could reasonably result in employee discipline. The NLRB has changed its stance on the issue several times since the Supreme Court first recognized the rights in 1975. Most recently, in its 2004 IBM Corp. decision, the Board held 3-2 that employers’ interest in conducting “prompt, efficient, thorough, and confidential” workplace investigations outweighed nonunion employees’ rights to representation. In Re: Request for Rulemaking Regarding Reconsideration of IBM Corp.

In a split decision, the NLRB decided to permit Mercedes-Benz International, Inc. to defend its rule against employees using cameras and video recording devices in its Alabama auto plant. Denying the NLRB General Counsel’s motion for summary judgment in a split decision, the majority reasoned that the Board had previously permitted employers to attempt to demonstrate that employees understood that rules forbidding cameras and recording were not meant to prohibit protected activity. The General Counsel argued that the rule interfered with employees’ right to engage in union activity and protected concerted activity for their mutual aid or protection. Mercedes-Benz U.S. Int’l, Inc.

An NLRB ALJ ruled that a railroad car repair company legally fired a worker who subjected a management representative to a vulgar tirade. The ALJ determined that the misconduct was not provoked by unfair labor practices, but rather that it was in reaction to an unwanted work assignment. The ALJ reasoned that the employee may have been engaged in protected, concerted activity when he complained to other employees about the assignment, but he lost the protection of the NLRA because of his insubordinate conduct and the profane statements he directed at management, in a work area, and in the presence of other employees. Harbor Rail Services Company and Eric Schultz.

An NLRB ALJ held that the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229 violated the NLRA by encouraging CMC Rebar employees to join the union’s strike against Western Concrete Pumping Inc. (WCP). The ALJ reasoned that “when a labor organization ‘induces or encourages’ employees of a neutral employer such as CMC to stop working if there is a secondary objective of forcing or requiring the neutral employer to cease doing business with the primary target, in this case WCP,” the conduct violates the NLRA. International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers Local 229 v. Commercial Metals Co.

An NLRB ALJ ruled that Burgerville LLC’s policy prohibiting off-duty employees from “loitering” or “hanging around” company property violated the NLRA. Because the policy’s terms could reasonably be interpreted to prohibit employees from engaging in protected activity, such as hand-billing in the non-work areas of Burgerville’s property, the ALJ determined that the rules were overbroad and ambiguous. An employer may only deny off-duty employees access to the premises if it has legitimate business concerns justifying access restrictions. Burgerville LLC v. Industrial Workers of the World.

An NLRB ALJ held that mine operator Murray Energy Corp. violated federal labor laws by taking several actions against United Mine Workers of America-represented miners at four West Virginia mines. The ALJ reasoned that a foreman’s comment to workers that if they “keep notifying the authorities” about safety issues, “they are going to shut this place down” constituted a threat, in violation of the NLRA. Further, the ALJ found that the foreman’s admonishment that miners did not “need to go to the authorities,” while not explicitly telling miners not to go, constituted coercion under the NLRA. The ALJ also ruled that an employee was illegally threatened with discipline for raising safety concerns. Additionally, the ALJ found that a supervisor engaged in unlawful surveillance by looking in on a union meeting, as he did not merely walk past the union meeting, but rather “stopped to investigate and see what else he could learn.” Murray American Energy Inc. and the Harrison County Coal Co. and United Mine Workers of America District 31, Local 1501.

The NLRB held that CSC Holdings, Inc. and Cablevision Systems New York City Corp. illegally transferred six employees in order to shift the balance at a worksite towards anti-union workers. The Board found that the employer’s stated reasons for the transfers—improving the working environment at the facility, giving the six employees a fresh start, and easing employee commutes—were pretextual. The Board noted that none of the employees had engaged in aggressive behavior that would have supported Cablevision’s explanation and that the transfer actually made some transferred employees’ commutes more difficult. Further, the Board found that Cablevision was closely monitoring employees for signs of unionization since a failed unionization bid by the CWA in 2012, and the transfers took place just one month after the six transferred employees were identified as being pro-union. CSC Holdings LLC and Cablevision Systems New York City Corp. and Andres Garcia and Paul Murray and Bernard Paez.

A split NLRB held that Allways East Transportation Inc., a bussing company, must bargain with Teamsters, Local 445, as a successor to Durham School Services, which it replaced in providing transportation services to Dutchess County, New York’s special education students. The majority reasoned that there was a “substantial continuity of operations” when Allways took over for Durham, as the companies performed the same general business and the bus drivers and monitors they employed performed the same basic jobs for each employer. The majority also found that the former Durham employees were an appropriate bargaining unit, as 62 of the 82 bus drivers and monitors Allways hired were former Durham employees. The Board found no violation in Allways changing employees’ initial wage rates, however, or in its termination of a driver without notifying the union. Allways East Transportation, Inc. and International Brotherhood of Teamsters, Local 445.

The NLRB ordered Missouri-based Hobson Bearing International Inc. to change its confidentiality policies, which prohibited employees from discussing their pay and bonuses and restricted employees’ discussion of proprietary or vital company information. The Board also ordered the company to reinstate an employee who was terminated for having a discussion about compensation. Hobson Bearing International Inc. and Tera Lopez.

The NLRB held that BHC Northwest Psychiatric Hospital, operating as Brooke Glen Behavioral Hospital, did not violate federal labor laws by refusing to bargain with the Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP) at meetings where Teamsters-represented employees were present. The Board reasoned that PASNAP was engaging in tangential inter-union politics by inviting Teamsters-represented hospital technicians, which PASNAP wished to represent, to the meetings. The Board also held that the hospital’s termination of a PASNAP-represented employee did not violate the NLRA because the termination was motivated by the employee’s outbursts toward management and visitors, not because of any concerted activity. BHC Northwest Psychiatric Hospital and Brooke Glen Nurses Association.

A divided NLRB ruled that the Grand Sierra Resort & Casino violated the NLRA when it barred a former employee, who was the lead plaintiff in an FLSA collective action against the casino, from attending a public event on its premises a year and a half after her employment ended. The majority found that the casino’s exclusion of the former employee interfered with other employees’ right to engage in concerted activity, because the exclusion would “reasonably tend to chill” the employees’ participation in protected concerted activity. In dissent, NLRB Chairman Miscimarra asserted that, when it enacted the NLRA, Congress did not “intend[] to guarantee that every former employee would have a right of access to the private property of his or her employer whenever he or she joined other employees in a non-NLRA lawsuit against that former employer.” MEI-GSR Holdings, LLC.

The NLRB held that Western Cab Company violated the NLRA when it failed to notify or bargain with the USW over the company’s unilateral decision to reduce new hires’ waiting period for health insurance coverage. The Board rejected the company’s argument that bargaining was not required because the change was mandated by the Affordable Care Act (ACA), finding that Western Cab did not show that the ACA contained any obligation that would trump the company’s NLRA obligations. The Board also noted that when an employer is compelled to change its union-represented workers’ terms of employment, it is still obligated to provide the union notice and an opportunity to bargain over the aspects of the changes that were left to the company’s discretion. The Board found that Western Cab had some discretion over the length of the insurance coverage waiting period, but that it failed to notify the USW or bargain with it over that term. Western Cab Company and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union.

A split NLRB reversed an ALJ’s decision that ordered a union election at ADT LLC’s Texas offices, finding that a merger introducing new technicians into ADT’s workforce did not necessitate a union election. Because ADT could not show that the CWA claimed to represent the newly added technicians, or that the bargaining unit was unhappy with its representation, the Board held that ADT could not petition the NLRB for a new election. Chairman Miscimarra dissented, arguing that the existing CWA-represented unit was extinguished when ADT merged with Broadview Security, Inc., necessitating a new representation election. ADT LLC and Communication Workers of America Local 6215.

An NLRB ALJ ruled that New Orleans charter school operator Voices for International Business and Education Inc.’s complaint policy, which required workers to voice grievances to management rather than to colleagues, infringed on the employees’ right under the NLRA to engage in protected concerted activity. The ALJ also held that many of the school’s technology policies violated the NLRA, including those requiring employees to obtain prior approval to send mass emails, limiting technology use to school business, and requiring school consent before forwarding personal emails. Further, the ALJ found that policies prohibiting staff from using social networks during school hours and prohibiting employees from posting the school’s name, address, website, image, logo, or phone number on social media were illegal. The ALJ held that the school could, however, bar workers from accessing offensive content in emails and voicemails. Voices for International Business and Education Inc. d/b/a International High School of New Orleans and United Teachers of New Orleans Local 527.

An NLRB ALJ held that Minnesota electrical contractor J. Westrum Electric illegally became alter ego company JWE LLC when the company’s owner attempted to avoid contractual obligations to International Brotherhood of Electrical Workers (IBEW), Local 292. The owner, Jon Westrum, bound the company to a collective bargaining agreement between the National Electric Contractors Association and the IBEW. However, Mr. Westrum ditched J. Westrum Electric and established JWE LLC, without notifying the union. The ALJ held that Mr. Westrum created JWE LLC with an unlawful motive, ordering him to make whole bargaining unit employees who incurred losses because of his failure to comply with the collective bargaining agreement. Jon P. Westrum.

The National Mediation Board (NMB) rejected Norwegian Air Shuttle’s attempt to overturn a vote by its U.S.-based flight attendants to transfer their union representation from the Norwegian Cabin Crew Association to the Association of Flight Attendants (AFA). Norwegian argued that the vote, in which 59 percent of voting flight attendants favored joining the AFA, was tainted by “misleading, fraudulent, or abusive election practices.” The airline asserted that employees-in-training were not permitted to vote and that a questionable ballot distribution method resulted in 35 employees not receiving ballots. The NMB found “no evidence of fraud or gross abuse in the election process.” Norwegian Air Shuttle ASA.

Legislation & Politics

The Trump Administration intends to nominate attorneys Marvin Kaplan and William Emanuel to fill the two vacant slots on the NLRB, hoping to gain Senate confirmation of the new members before the August recess. Mr. Kaplan is Occupational Safety and Health Review Commission counsel and Mr. Emanuel is a management-side labor attorney in Los Angeles. The appointments would give the five-member board a Republican majority.

Senate Republicans have introduced the “Representation Fairness Restoration Act” to reverse NLRB law permitting employees to form micro-unions, which represent only a portion of a company’s workforce. Senator Lamar Alexander (R-Tenn.), who supports the bill, stated that “micro-unions fracture[] the workplace, and make it more difficult for employers to manage their workplace and do business.” House Republicans have introduced a companion bill. The Senate bill will need some support from Democrats to pass.

Crime, Corruption & Other Misdeeds

The U.S. Department of Justice indicted John Matassa, Secretary-Treasurer of the Independent Union of Amalgamated Workers, Local 711, on charges related to embezzling union funds and defrauding the government. Mr. Matassa allegedly placed his wife on the union’s payroll even though she performed no duties on behalf of the union, and lowered his own salary in order to gain early retirement benefits from the Social Security Administration. Twenty years ago, Mr. Matassa was ousted from his position as the President and Business Manager of Laborers’ International Union of North America, Local 2, amid allegations that the local was engaged in organized crime and that it misused union funds.

Comments are closed.