List And Check It Twice!

Jackson Lewis PC – Thomas V. Walsh, Howard M. Bloom and Philip B. Rosen.

USA June 16 2017.

Several deficiencies in a voter eligibility list justified rerunning an election that the employer had won, the NLRB has held, 2-1 (Chairman Philip Miscimarra dissenting in part). RHCG Safety Corp., 365 NLRB No. 88 (June 7, 2017).

The Board found that more than 90% of the voters’ addresses on the list provided by the employer were wrong, 15 of the 99 eligible voters were left off, and no phone numbers were provided (HR did not maintain them in its database) despite supervisors and foremen informally having this information and using it for work-related contacts with employees.

Beginning April 2015, under the new NLRB election rules, employers must provide an expanded voter eligibility list – including not only the names and home addresses required under the old rule, but also “available” home and cell phone numbers (as well as job titles, work locations, and “available” email addresses) to the union filing an election petition. On top of that, employers have only two days from finalization of the election details to assemble and serve this comprehensive list.

Employers must complete the list with care. Failure to provide a thorough and accurate list will be grounds for an “objection” filed by the union should it lose the election. The usual remedy is rerunning the vote if the company wins.

The problem with incorrect addresses and omitted names is straightforward, but what does the Board mean by “available” phone numbers and e-addresses? The rules’ preamble retains the traditional understanding that employers do not have to solicit information from voters in order to compile the list. So, does that mean HR’s information is sufficient under the new voter list rule? The Board in RHCG said no. That the employer did not keep formal HR records of employees’ phone numbers did not shield the company – because members of management had the information, and called employees for work reasons, the phone numbers were deemed “available” to the company. The employer should have investigated and collected these numbers from supervisors, the Board said.

Among other things, the employer argued its mistakes were inadvertent. The Board responded that a reason for the new rule is to maximize the “likelihood that voters will be exposed to the non-employer party arguments” concerning the election. Good faith by the employer is not necessarily relevant.

If your company is facing a Board election, be very careful in compiling the voter list. The NLRB’s election rules will be interpreted strictly. In our firm’s long experience, employer compilation of this list frequently is more time consuming than one might expect – that is underscored by the new rules (and now this case). Start assembling the needed data as soon as an election petition is filed.

Jun 19, 2017 / by Chris Opfer

PUNCHING IN: NEW BLOOD AT NLRB, LABOR DEPARTMENT DEADLINES

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn

NLRB Nomination Week? | DOL Deadlines

Chris Opfer: Any day now, we expect the Trump administration to formally announce the nominations of Bill Emanuel and Marvin Kaplan to fill the two vacant seats on the NLRB. The White House was supposed to unveil Trump’s picks for the board last week, but that appears to have been held up at least in part as a result of schedule shuffling following the shooting of Rep. Steve Scalise and others at a congressional baseball practice. Employer community representatives and Republicans have been badgering the administration to get on with the nominations so the board can start undoing decisions from the Obama years and will welcome the announcement when it comes. Still, it’s going to take some time before the first GOP-majority board in nine years puts its stamp on federal labor law.

For one thing, it may be awhile before Emanuel and Kaplan are confirmed by the Senate. Lawmakers are only in session for about four weeks – they return home for the Fourth of July – before a month-long summer recess in August. The Republican majority is trying to get a health-care bill done during that time, and appropriators are focusing on at least pushing drafts of funding bills for next year out the door. That’s not to mention that the NLRB openings are nowhere near the only ones that the administration has to fill. Given that Democrats made it clear that they’ll stretch out the confirmation process for each and every nominee, the schedule is likely to be jam-packed before summer break.

Even once Emanuel and Kaplan get to the board, change may be slow. The board can only decide the cases that land in front of it. That means we have to wait for a new case on joint employer liability, micro-unions, or organizing on private college campuses before we see how a new board will address those issues. To the extent the NLRB eventually decides it wants to backtrack on the representation election rule, it will have to go through the entire rulemaking process. In other words, get comfortable.

What will the new National Labor Relations Board tackle first? And when? Send us your thoughts and questions at bpenn@bna.com and copfer@bna.com, or on Twitter: @BenjaminPenn and @ChrisOpfer.

Ben Penn: Labor Department staff can put the gold curtains in storage. Donald Trump’s visit to DOL last week didn’t happen because of the shooting, and that means Secretary Alex Acosta, his skeleton crew of politicals, and career employees are resuming normal operations.

I hate to sound like a broken record, but the question that remains on everyone’s mind is when will the White House give final approval to Acosta’s appointments? For the positions requiring Senate approval, forget about meeting that pre-August recess deadline. I’m setting the over-under at New Year’s 2018.

Rather than hazard a guess on the timing of appointments and policy decisions, let’s stick with what we know to be true. We might not learn much new this week, but here are a few looming deadlines in the next month facing DOL that should prove revelatory:

• June 27: That’s the rescheduled date for Acosta to defend the DOL budget request before the Senate subcommittee on labor appropriations. Acosta showed his hand more than expected at his House budget hearing June 7, so maybe he’s even more forthcoming when he heads over to the Senate.
• June 30: Fifth Circuit deadline for the Trump Justice Department – with the DOL solicitor’s office coordination – to file a brief in the Obama administration’s appeal of a federal court decision to block the overtime rule. With acting Solicitor Nick Geale still in need of help, I’m keeping my eye out for the DOJ to file another extension request. We could be waiting for answers on this tricky matter for a while.
• July 10: That’s when the administration must submit to the U.S. Supreme Court a response to an industry-backed request that the high court consider invalidating the DOL’s tip-pool reg. The DOL and DOJ, at least for now, are teaming up on a strategy to defend this Obama-era rule that determines when front-of-house service industry workers may share tips with back-of-house employees. Similar to the overtime rule, one would expect a more employer-friendly Trump administration to consider reversing course. Or the White House could roll the dice and let the high court’s new conservative majority nullify the rule.

Bloomberg Law

June 14, 2017

Unions Leverage OSHA and other Dept. of Labor Enforcement as an Organizing Tactic

 

As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members.  Traditionally, when a labor union begins an organizing campaign at a workplace, the federal agency at the center of the process is the National Labor Relations Board (“NLRB”).  The NLRB’s purpose is to protect the rights of workers to organize and to freely choose whether or not to be represented by a labor union.  Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.

However, unions are more and more often engaging with or depending on the regulations of other federal agencies as a tactic to gain leverage during organizing campaigns.  There are numerous ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees to embrace the union, or to put pressure on employers to concede to union representation.

Taking OSHA as an example, an on-site workplace safety inspection, or even just the threat of an inspection, can impact an organizing campaign in a manner favorable for the union.  The threat of making an OSHA complaint or inviting OSHA into the workplace to conduct an inspection can put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists.  A safety complaint could spark an OSHA inspection and, with 75% of all OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands.

During the Obama Administration, an OSHA inspection would have been particularly beneficial to a union’s organizing efforts at a non-unionized worksite because of OSHA’s 2013 Letter of Interpretation that allowed a union representative to participate in an on-site inspection.  Specifically, the Letter explained that an employee’s authorized inspection representative “shall” be permitted to participate in an OSHA inspection, and that the representative could be a non-employee union member, even if employees at the worksite had not elected the union and had no collective bargaining agreement in place; i.e., a union representative could participate in an OSHA inspection at a non-union facility.  This generated even greater motivation for unions to use safety complaints (even fabricated complaints) and OSHA inspections as a tactic in organizing campaigns.

In welcome news for employers, the Trump Administration revoked this letter of interpretation on April 25, 2017, and its guidance is no longer applicable.  However, the threat of a complaint or inspection remains a tool at the union’s disposal to coerce an employer.

An inspection and any resulting citations may also serve to benefit a union by creating a platform upon which the union can assert that organizing would serve the interests of the employees.  Workplace safety is a significant issue to employees, and one that can be quite influential in considering whether to unionize.  Citations resulting from an OSHA inspection, for example, although simply unproven allegations of non-compliance with safety requirements at first, can be waived about by the union as a central issue it would tackle on behalf of employees, should employees vote in favor of representation.

This tactic is not limited to just OSHA complaints, inspections, and citations.  The topic of wages and benefits is another chief concern for employees, so accusations of failure to pay overtime wages made to the Dept. of Labor’s Wage & Hour Division, or the threat of an enforcement action initiated by the Employee Benefits Insurance Administration, could similarly create an environment more conducive to unions’ organizing efforts.  Indeed, any type of complaint to or enforcement action undertaken by a federal agency could give the union grounds to assert that it would improve some relevant aspect of the work conditions or environment. If the union or one of its proxies made the complaint leading to an inspection or investigation, this may give even greater credibility to the union, and more credence to the union’s claims that it can protect the workers’ interests.  Additionally, enforcement actions and any allegations of non-compliance can harm the public image of the employer and cause it to defer time and resources to defending itself on the regulatory and PR front, as opposed to presenting its case to employees who are considering whether to organize.

Records and data required to be maintained by a federal agency may also be used to curie favor for the union among employees, as has been recently demonstrated in the context of OSHA work-related injury and illness records.  OSHA requires employers to maintain records of work-related injuries and illnesses, and if, during an organizing campaign, the union obtains a copy of these types of records, it could use the data to contend that the employer is not doing enough to protect the safety of its employees, supporting the need for union representation.  This scenario has been playing out for one auto-maker as a union-affiliated occupational safety non-profit recently published the injury rates from one of its California facilities to demonstrate that the rates were historically higher than the industry average amidst union organizing efforts.  Although the rates themselves give little to no context to the type or cause of injury, including whether the employer could have even done anything to prevent the injuries, the sheer numbers can be sufficient to sway an employee in the union’s favor.  Indeed, OSHA characterizes injury and illness recordkeeping as a “no fault” system because OSHA recognizes that “many circumstances that lead to a recordable work-related injury or illness are ‘beyond the employer’s control.’”  Nevertheless, these numbers can be manipulated by a union to tell a story about employee safety, or other relevant work conditions, that fits its organizing efforts.

Although unions have these various tactics at their disposal, employers can take proactive measures to thwart these efforts and decrease their impact on the organizing front.  Employers should implement procedures by which employees can raise safety, wage, or other concerns with management representatives and that require management follow up so employees feel their voices have been heard.  Forming an employee safety committee and/or holding regular meetings with employees are other methods by which employers can ensure they are addressing employee interests.  Employers can also prepare ahead of time for an inspection or investigation by a government agency by establishing a procedure for such actions, assigning necessary resources and personnel, and training relevant personnel on how they should conduct themselves during an inspection or investigation.  Such preparation could limit the impact of a federal agency investigation and, at the very least, permits an employer to allocate resources without also taking them away from its efforts in a union organizing campaign.  For guidance on preparing for an OSHA inspection, checkout our OSHA Inspection Toolkit.

Finally, employers may consider sharing certain data and the context of that data with employees.  In the case of OSHA injury and illness data, all employers must post their OSHA Form 300A injury and illness data summaries annually and this presents a good opportunity to review with employees what the data means and how the employer’s safety and health policies and procedures impact that data.   In the case of wage data required to be maintained under the Fair Labor Standards Act and open to review by the WHD, employers may consider some level of transparency with employees regarding how base pay is determined and why pay might differ among similarly positioned employees based on performance, experience, and credentials.  This gives employees an understanding of pertinent data before the union attempts to use the data to its own advantage. 

           

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.