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| Reversing an election outcome in 2011, nearly 90 percent of eligible flight attendants at Virgin America voted, 430-307, for representation by the Transport Workers Union (TWU). The National Mediation Board (NMB) is expected to certify the TWU as the group’s bargaining agent. The flight attendants are the first work group at the San Francisco-based low cost carrier to vote for a union. |
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| More than 100 employees at the Tukwila, Wash.-based Jorgensen Forge Corporation have voted to join the International Association of Machinists and Aerospace Workers (IAM). The workers, who voted in favor of representation by a 3-2 margin, initiated the organizational efforts by contacting the union out of concerns over pay, health care benefits, and the lack of grievance procedures. |
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| Minnesota home health care workers have voted to be represented by the Service Employees International Union (SEIU) Healthcare Minnesota, which will now represent nearly 27,000 workers in the state. After collecting more than 9,000 authorization cards seeking to have the union designated as the home care providers’ exclusive bargaining representative, the SEIU petitioned for recognition and a secret ballot election was launched. Despite the number of authorization cards, the mail-in vote only resulted in a voter turnout of 6,000 home health care workers, more than 3,500 of which voted in favor of representation. The vote came after the United States District Court for the District of Minnesota denied as premature a motion for preliminary injunction from nine home care provider plaintiffs seeking to halt the election. In the wake of the election, the home care providers will likely reassert the argument that Minnesota’s Individual Providers of Direct Support Services Representation Act, which allowed the state-subsidized home care workers to unionize under Minnesota’s Public Employment Labor Relations Act, was unconstitutional. |
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| Nearly 200 taxi drivers in San Francisco and 1,000 drivers in Montgomery County, Md., have voted to be represented by the AFL-CIO affiliate National Taxi Workers Alliance (NTWA). The NTWA, which represents nearly 18,000 cab drivers in New York City, does not function as a traditional union or negotiate collective bargaining agreements, as the drivers it represents work as independent contractors. The NTWA has criticized what it views as a highly exploitative taxi industry, claiming that many taxi drivers have no legal protections, often earn less than minimum wage, and are subject to high lease fees, all while facing pressure from the proliferation of competition from new ride-sharing services, such as Uber. |
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| In response to proposed reductions in health benefits and concerns about staffing levels, members of the California Nurses Association/National Nurses United (CNA/NNU) went on a three-day strike at the Watsonville Community Hospital in Watsonville, California. The union and the hospital, who have been operating without a labor agreement since the expiration of their last agreement in November 2013, have had nearly a dozen bargaining sessions. According to union officials, hospital management has proposed an elimination of the 6 percent hospital contribution to the nurses’ retirement plan, implementation of a matching system, and an increase in out-of-pocket expenses for health benefits. The union also asserts that the hospital has failed to address concerns about nurse staffing levels. According to the hospital, the protest has not affected operations at the hospital, which has increased security and used a temporary staffing firm to place nurses in the facility. The Watsonville strike is the latest protest by the nearly 250 nurses represented by the CNA/NNU, which also engaged in a one-day strike at a Santa Cruz County hospital in December. |
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| Separate unfair labor practice charges were filed against FairPoint Communications Inc. by the International Brotherhood of Electrical Workers (IBEW) and the Communication Workers of America (CWA) after the company implemented its final proposals without union approval. The unions, which have been negotiating jointly on contracts covering nearly 2,000 workers in Maine, New Hampshire, and Vermont, claim that the Charlotte-based technologies company refused to bargain in good faith by implementing new terms and conditions of employment before impasse, without having made a last, best, and final contract offer, and by failing to provide the unions with information necessary for bargaining. The proposals, implemented after what the company claims was three weeks of deadlock, provide no change to current wage rates for current employees, preservation of substantially the same benefit plans, a freeze of the existing defined benefit pension plan, and the elimination of retiree medical benefits for current employees. |
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| According to an analysis of data by Bloomberg BNA of all settlements reported through August 18, 2014, the average first-year wage increase was 2 percent, the same increase reported in the comparable period of 2013. The median first-year wage increase was 2 percent, the same increase as reported in 2013. The weighted average was 2.6 percent, compared to 1.8 percent in 2013. When construction and state and local government contracts were excluded, the all-settlements average, median, and weighted average increased to 2.4 percent, 2.5 percent, and 2.7 percent respectively, compared to 2.5 percent, 2.1 percent, and 1.8 percent in 2013. When lump-sum payments were factored into wage calculations, the all-settlements numbers to date for 2014 increased to 2.3 percent, 2.1 percent, and 3.1 percent respectively, compared to 2.4 percent, 2 percent, and 3.2 percent in 2013. |
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| Major collective bargaining agreements reached in Canada during the second quarter of 2014 produced average base-rate wage increases of 1.5 percent, more than double the 0.7 percent average in first quarter 2014, but matching the 1.5 percent average in fourth quarter 2013. The second quarter average is slightly smaller than the 1.6 percent average for wage settlements to date in 2014 but slightly larger than the 1.4 percent average for 2013 as a whole. The second quarter figure was based on 59 collective agreements covering 201,260 employees, with durations averaging 45.1 months. The eight private sector agreements settled during the second quarter of 2014, involving 7,740 employees, produced average annual wage increases of 2.3 percent and had durations averaging 38.6 months. That compares to the 2.8 percent average in the first quarter, 2.2 percent average for 2014 to date, and 2.2 percent average for 2013 as a whole. |
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| Members of the six union locals that make up the Service Trades Council at Walt Disney World in central Florida have voted to ratify a new 5.5-year collective bargaining agreement, covering approximately 27,000 workers. The unions comprising the council are: UNITE HERE Local 737 representing food and beverage workers, hotel housekeepers, and servers; UNITE HERE Local 362 representing custodians, vacation planners, and auto plaza workers; IBT Local 385 representing bus drivers, parking attendants, costumed characters, laundry workers, and ranch employees; Transportation Communications Union Local 1908 representing hotel concierges, watercraft operators, monorail pilots, lifeguards, valets, golf operations workers, child care workers, and front desk personnel; the International Alliance of Theatrical and Stage Employees Local 631 representing stage technicians, costumers, and cosmetologists; and United Food and Commercial Workers (UFCW) Local 1625, which represents tipped banquet employees, florists, and merchandise employees. The agreement provides for a minimum wage increase of $1 per hour, up to $9 per hour, retroactive to March 30. Workers in higher wage grades will receive a 35-cent hourly increase retroactive to March 30, followed by increases of the same amount in 2015 and 2016. Workers in the lower wage grades will receive a 50-cent hourly pay increase annually. Minimum hourly wages will rise to $9.50 in 2015 and $10 in 2016. |
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| Members of the IAM have ratified separate five-year contracts with United Parcel Service of North America Inc. that cover some 4,000 mechanics and maintenance workers at more than 100 UPS small package and UPS Freight business units nationwide. The IAM members at 33 local lodges voted on the two tentative agreements throughout June and July. Both contracts include general wage increases, a hike in employer pension contributions and a decrease in employees’ payments tied to health care benefits. The contracts, which cover full- and part-time workers, took effect August 1, and expire July 31, 2019. |
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| UFCW Local 700 members in northeastern Indiana have ratified a four-year agreement with Kroger Co., that covers approximately 2,500 workers at 24 stores in and near Fort Wayne, Ind. The new agreement includes guaranteed wage increases every year for top-rated positions, and more positions will receive premium pay. Additionally, health and pension benefits for the 2,500 workers at Kroger stores in the Fort Wayne area will remain identical to those secured in 2013 in an agreement that covers 5,800 of Kroger’s employees at 61 stores in the Indianapolis area. The new contract also includes improvements to employee grievance procedures, provisions for more fair and equitable scheduling, and more options for employee vacations. |
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| The Association of Flight Attendants-CWA and Spirit Airlines have reached a tentative agreement on a five-year contract covering nearly 1,400 flight attendants. A previous agreement reached in late 2013 was overwhelmingly rejected by union members in February despite the backing of local union leaders. The ratification vote on the new tentative deal will take place throughout September. The union disclosed that the proposed contract includes “immediate economic improvements, as well as protection of industry-leading health care and key quality of life provisions.” |
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| USW workers have ratified a three-year contract, ending a four-month lockout at the Indspec chemical plant in western Pennsylvania. The contract includes concessions, although details were not revealed. It was previously reported that the company wanted to cut the pay on 30 lower-grade jobs, reduce workers’ personal days, and change scheduling and health insurance terms. The union represents about 175 full-time workers at the plant some 40 miles north of Pittsburgh. |
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| Members of 1199 SEIU United Healthcare Workers East employed at New York nonprofit hospitals and medical centers have ratified a four-year labor contract including a 13 percent wage hike over the agreement’s term. The vote was held at more than 100 facilities in the greater New York area—collectively employing some 70,000 nurses, technicians, and other non-physician medical workers. Employees will receive initial 3 percent raises, followed by wage hikes of 3 percent, 3.5 percent, and 3.5 percent in the ensuing three years, respectively. Members will also retain existing medical benefits, although the terms allow the parties to negotiate a new health care reimbursement structure for the employee benefit fund in the next contract, which would begin in 2018. |
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| Terms of a tentative five-year agreement between the Southeastern Pennsylvania Transportation Authority (SEPTA) and the IBEW Local 744 are consistent with the recommendations made by a Presidential Emergency Board (PEB) in July. The PEB favored SEPTA’s position on most economic issues, including the transit agency’s rejection of union demands for retroactive pay increases. It also rejected a demand for wage increases that reflect the economic value of a pension enhancement that was included in SEPTA’s 2009 contract with its largest union and in subsequent agreements with 14 smaller labor organizations. The tentative contract fits the bargaining pattern SEPTA established in contracts with the other unions: those accords included 11.5 percent wage increases over five years and a $1,250 signing bonus. |
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| UFCW members ratified a six-year collective bargaining agreement with Acme Markets Inc., which will cover approximately 3,000 Pennsylvania store clerks, cashiers, and stockers. The contract, which was ratified after more than two years of negotiations, calls for one lump-sum bonus equivalent to 30 cents an hour for every hour an employee worked in the previous year, and three wage increases totaling 90 cents an hour. The agreement also includes a successorship provision, whereby buyers would be bound by the terms of the agreement. Under the agreement, which incorporates a value-based health plan design, employees who select patient-centered medical homes as their primary care provider will experience little or no increase in the fees they pay for care. |
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| CWA members ratified a four-year collective bargaining agreement with Connecticut-based Frontier Communications Corp., which will cover nearly 1,500 West Virginia technicians and call center workers represented by nine CWA locals. The contract, retroactive to August 2013, calls for wage increases of 8 percent over the term of the agreement, as well as an $800 bonus payable within 30 days of ratification. The agreement also includes a change from a 37.5-hour workweek to 40 hours, restrictions on the communications company using workers outside of West Virginia, a $150 boot allowance every two years, and preservation of the existing pension plan. |
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| Food 4 Less/Food Co, a subsidiary of Kroger Co., reached a tentative agreement with seven UFCW locals, which, if approved, will cover more than 6,000 workers at grocery stores across California. While specific details of the tentative agreement have not been released, both parties claim the agreement includes wage increases, affordable health care, and pension protection. The tentative deal was preceded by disagreements over how employee health benefits would be funded, which led to a purportedly tense standoff and public boycott that brought workers to the edge of strike. Ratification vote meetings are scheduled for early September. |
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| The Pacific Maritime Association and the International Longshore and Warehouse Union (ILWU) reached a tentative agreement on terms related to health care benefits, which, if approved, would cover nearly 20,000 workers at shipping lines and terminal operators at ports scattered across the West Coast. Details of the tentative agreement were not disclosed. Under the previous six-year agreement, health care coverage was provided with no employee premium contributions. While bargaining over other issues will continue, the treatment of health care benefits was a major concern for both parties. Both parties have agreed to keep the ports operational as negotiations continue. |
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| Members of all eight unions representing workers for the Long Island Rail Road avoided a scheduled work stoppage by ratifying a tentative 6.5-year collective bargaining agreement with the Metropolitan Transportation Authority (MTA), which will cover approximately 5,400 workers at the nation’s largest commuter railroad. After more than four years of negotiations, mediations, and two presidential emergency boards, the tentative deal is now before the MTA board, whose vote is the last step necessary to finalize the agreement. The agreement calls for a 17 percent wage increase over the term. All employees will be required to contribute 2 percent of base pay to health care contributions, while current employees will be required to contribute 4 percent toward their pension plan for 10 years, compared to 15 years for new hires. The agreement also sets forth a seven-year wage progression scale for new hires, while retaining the five-year progression for current employees. |
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| The International Brotherhood of Electrical Workers (IBEW) and Connecticut-based Frontier Communications Corp. reached a three-year agreement through interest arbitration, which occurred after 14 months of arbitration. The agreement, which covers more than 1,000 workers in California, Nevada, Oregon, and Washington, calls for reasonable wage increases, a new health care plan, and a guarantee that Frontier will continue to operate a customer service center and related support center in Washington until the expiration of the agreement in 2017. The agreement does eliminate the workers’ previous rights to two consecutive days off per week. The agreement also includes a provision allowing Frontier to use contractors for the work assignments of mechanics, outside line construction workers, and central office installation employees. However, in an effort to mitigate any adverse impact on employees whose positions were contracted out, Frontier has stated that such employees will have the ability to receive cross-training and opportunities to fill other job vacancies. Details concerning the amount of wage increases, the new health benefit plan, or the reductions in the 401(k) match are not immediately available. |
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| UFCW members ratified a five-year collective bargaining agreement with JBS USA, which will cover approximately 1,100 workers at the Pennsylvania beef processing plant. The contract calls for wage increases of $1.80 per hour over the term of the contract. Under the agreement, employees hired on or before February 2, 2014, are to receive two bonus payments of $300 each, while employees hired after February 2, 2014, are to receive two bonuses of $100 each. The agreement also calls for the creation of a low-cost health care clinic, which will provide primary care, including medical checkups, lab work, treatment for minor illnesses, and access to low-cost prescription drugs. |
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| Members of the ILWU ratified a four-year collective bargaining agreement with three grain handlers who operate export facilities in Oregon and Washington. The contract, which was negotiated on behalf of the grain operators by the Pacific Grain Handlers Association and facilitated by the Federal Mediation and Conciliation Service, ended lockouts affecting nearly 700 workers. While the terms of the agreement have not been disclosed, the agreement purportedly includes work-rule concessions demanded by the association. Prior to the ratification, which was preceded by years of contentious labor disputes, the association had demanded concessions allowing fewer employees to load ships, flexibility to use elevator employees to assist in ship loading, and the ability to have personnel outside of the bargaining unit perform certain work. |
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| The United States Court of Appeals for the Tenth Circuit ruled that the National Labor Relations Board (NLRB or Board) correctly held that Harborlite Inc.’s threat to hire permanent replacements during a lockout did not convert the lockout into an unfair labor practice warranting an award of back pay. Harborlite, a Colorado mine operator, locked out employees represented by IBT Local 455 after its final contract offer was rejected. Although the mine operator threatened at the time of lockout that it planned to hire permanent replacements, it later informed the union that the hiring of any replacements would be temporary in nature. A divided Board held that while the threat itself violated federal labor law, it did not render the lockout illegal. On appeal, the Tenth Circuit agreed, questioning, without deciding, the union’s assertion that hiring permanent replacements during a lockout was a per se violation of the National Labor Relations Act (NLRA). Even assuming that it were a violation, the court held that a single threat that was never acted upon did not make an otherwise lawful lockout unlawful. Emphasizing that the mine operator never acted on the threat, the court distinguished the Board’s decision in Ancor Concepts, which held that an employer’s statement to locked-out employees that they had in fact been permanently replaced rendered the lockout illegal. Teamsters Local 455 v. NLRB. |
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| The United States District Court for the District of Minnesota denied a motion for preliminary injunction from nine home care provider plaintiffs seeking to halt an election in which thousands of in-home care providers will decide whether to be represented by SEIU Healthcare Minnesota. The home care providers argued that Minnesota’s recently enacted Individual Providers of Direct Support Services Representation Act, which allows the state-subsidized home care workers to unionize under Minnesota’s Public Employment Labor Relations Act, was unconstitutional as state certification of an exclusive bargaining representative would violate the providers’ First Amendment rights by making them associate with the SEIU or any other union. After collecting more than 9,000 authorization cards seeking to have the union designated as the home care providers’ exclusive bargaining representative, the SEIU petitioned for recognition and a secret ballot election was launched. The court held that the motion was premature, reasoning that the motion was based on a union becoming the exclusive bargaining representative, an event that had not yet occurred and might not occur at all. The court further held that merely holding an election that may violate the First Amendment is in, of itself, a violation of the First Amendment. However, the court added that the plaintiffs could renew the motion if the SEIU wins certification, which, as reported above, has since occurred. Bierman v. Dayton. |
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| The United States District Court for the Western District of Arkansas granted the NLRB’s motion for preliminary injunction under Section 10(j) of the NLRA, finding reasonable cause to believe that an Arkansas bakery committed a series of unfair labor practices that tainted an employee petition signed by 132 of 199 bargaining unit employees to decertify a Bakery, Confectionary and Tobacco Workers and Grain Millers (BCTGM) local as the employees’ bargaining representative. The court ordered the bakery to restore the union’s bargaining rights and plant access while the NLRB considers the legality of the bakery’s conduct leading up to its withdrawal of union recognition. An NLRB regional director issued a complaint alleging that the bakery withdrew recognition based upon a petition tainted by unfair labor practices, including union disparagement, employee interrogation, threats of facility closure, implied promises of wage improvements, and the installation of break room cameras that created an impression of union activity surveillance. While the ALJ found the allegations meritorious, the motion was filed because it could take months before the conclusion of the administrative proceedings before the Board. McKinney v. S. Bakeries, LLC. |
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| On remand from the United States Court of Appeals for the District of Columbia Circuit, the NLRB reaffirmed its ruling that reduction of back pay awards by interim earnings in cases that do not involve a cessation of employment are improper. In 2004, the Board held that a Community Health Service, Inc. hospital violated the NLRA when it reduced the working hours of employees without bargaining with the USW. After the United States Court of Appeals for the Tenth Circuit enforced the Board’s order, the Board entered a supplemental order finding that the hospital owed several employees back pay. The hospital petitioned the D.C. Circuit to set aside the order, and the court remanded the case to the Board, stating that it wanted a more thorough analysis of the Board’s interim earnings ruling. The Board reaffirmed its holding, ruling that the hospital was required to make the employees whole without any offset of interim earnings against the back pay award. Citing public policy, the Board reasoned that a reduction in back pay in cases where there is not a cessation of employment is inappropriate because it would represent an unwarranted windfall to the employer, discourage compliance with the law, and potentially induce employers to delay making payments ordered by the Board in the hope that a longer period of interim employment would result in a reduction in back pay owed. Community Health Servs., Inc. |
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| A divided NLRB ruled that Phillips Electronics North America violated the NLRA by maintaining an unwritten rule that discipline was confidential and prohibiting employees from discussing discipline on the warehouse floor at any time. A former material handler brought the unfair labor practices claim after allegedly being terminated after showing other employees a warning letter issued in connection with sexual harassment complaints raised against him by a co-worker. The administrative law judge (ALJ) ruled that Phillips did not have any formal, written confidentiality policy, and that there was not enough evidence to determine that employees were instructed that they were prohibited from discussing disciplinary actions with others. The ALJ further found that the employee’s termination did not violate the NLRA. The Board affirmed the ALJ’s ruling that the employee’s discharge did not violate federal labor law, but overturned the ALJ in ruling that Phillips violated the NLRA by enforcing an information confidentiality rule that prevented employees from discussing disciplinary actions with each other. Phillips Electronics N. Am. Corp. |
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| In a 2-1 decision, the NLRB held that an original eligibility date applied to an election delayed by blocking charges. In this case, the Warehouse Production Sales and Allied Services Employees Union Local 811 filed a representative petition in March 2013. After the union and company entered a stipulated election agreement, an NLRB regional director approved the agreement on March 21, 2013. Consistent with Board case-handling procedures and precedent, voting was limited to employees employed during the last payroll period before the regional director’s approval. As a result of several unfair labor practice charges, the petition was delayed for several months and the election, originally set for April 16, 2013, was held in November 2013. The Board agreed with a regional office ruling that 23 voters were ineligible as they were not employees before the original eligibility date. Acknowledging the concern of voter disenfranchisement, the Board reasoned that the original eligibility date informed all interested parties of who could participate in the election, and mitigated the possibility of hiring decisions made to affect the election’s outcome. Tekweld Solutions, Inc. |
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| A split NLRB ruled that a Jimmy Johns franchisee violated the NLRA when it terminated six employees for assisting an Industrial Workers of the World affiliate to distribute posters linking worker demands for sick leave with a message that consumers might buy contaminated sandwiches made by unhealthy employees. In so holding, the Board held that the workers’ actions did not constitute disloyalty or reckless disparagement, reasoning that the employees did not make an express claim that any customer had been ill as a result of contaminated food, but rather only suggested the potential for illness resulting from the preparation of food by sick workers. The dissent viewed the conduct as unprotected disparagement of the franchisee’s product, noting that the employees received unpaid sick leave, the posters exaggerated the potential for food contamination, and there was no reasonable correlation between the alleged health problem and the employer’s lack of paid sick leave. MikLin Enters. Inc. d/b/a Jimmy John’s. |
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| A divided NLRB ruled that an aluminum company violated federal labor law when it fired an employee for allegedly making a “cut throat” gesture to another employee two weeks after returning from strike. Reversing the ALJ’s finding that the employee was discharged for violating the company’s zero tolerance anti-harassment policy, the Board ruled that it could not find that the policy was administered in a consistent manner and that the discharge conformed to an established disciplinary practice. The Board found compelling evidence of striker animus, noting that the employer made the discharged employee and others sign a no-strike pledge, and the discharge occurred shortly after a return from strike. Accordingly, the Board found that the company could not show it would have taken the same action in the absence of a strike. The dissent argued that the employee could not show that animus against protected activity motivated the discharge, reasoning that nearly all workers took part in the strike, there was no evidence that the employee played a significant role or was singled out, and the employee agreed to the no-strike pledge and was not disciplined for violating it. Nichols Aluminum, Inc. |
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| A unanimous NLRB ruled that a Connecticut-based restaurant and bar violated federal labor law when it fired an employee for “liking” a Facebook status update of a former employee stating the employer improperly calculated tax withholdings. The Board interpreted the “like” as an approval of the original status update, and not an endorsement of any other comments stemming from the initial update. In a related case, the Board also held that the employer unlawfully fired another employee for commenting on the status update by endorsing the complaint of the employer’s tax withholding errors. In both cases, the Board rejected the employer’s argument that the discharged employees lost protection under the law by adopting defamatory and disparaging comments made by the former employee. Notably, in so holding, the Board clarified the framework for assessing comments made in the realm of social media. The Board rejected use of the Atlantic Steel framework, finding it ill-suited to cases involving off-duty, off-site use of social media to communicate with other employees and third parties. Rather, the Board analyzed the comments under the Jefferson Standard and Linn standards. Finding that the comments were sufficiently disloyal to lose protection under Jefferson Standard as no products or services were mentioned, and the employer did not show the comment to be “maliciously untrue” under Linn, the Board found the comments protected. A divided Board also struck down the employer’s Internet/blogging policy that prohibited inappropriate discussions about the company, management, or other works, finding that the policy could reasonably be interpreted by employees to restrict protected activities. Triple Play Sports Bar. |
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| The Board ruled that Ralphs Grocery Co. violated federal labor law by firing a produce manager who refused to take a drug test without consulting a union representative first, saying the refusal was intertwined with the worker’s assertion of his Weingarten rights. Weingarten rights allow employees to insist on having a union representative present for an investigatory interview that the employee reasonably believes could lead to disciplinary action. The company said manager’s refusal was insubordinate and amounted to an automatic positive test result, but the Board said that wasn’t a valid defense because there was no way to divorce that refusal from the assertion of his Weingarten rights. Ralphs Grocery Co. |
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| A divided NLRB found that a Fresh & Easy Neighborhood Market’s confidentiality rule was unlawful, concluding that workers would interpret the rule to bar discussions of things like wages and terms and conditions of employment. The NLRB General Counsel took issue with two sentences in the “confidentiality and data protection” section of the Fresh & Easy code which told workers to keep customer and employee information secure and warned that information must be used “fairly, lawfully and only for the purpose for which it was obtained.” The Board majority said the NLRB has repeatedly found rules with “similarly overbroad phrasing” to infringe on rights that are safeguarded by Section 7 of the NLRA. Fresh & Easy Neighborhood Market. |
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| The NLRB found that a female employee’s efforts to obtain help from her Fresh & Easy Neighborhood Market co-workers in raising a complaint of sexual harassment to be concerted activity that is protected by Section 7 of the NLRA. Despite that finding, the NLRB said in this particular case – brought by a cashier at a Fresh & Easy in Phoenix – that the grocery store did not violate the NLRA when it questioned the cashier as to why she obtained witness statements from her coworkers and directed her not to continue to collect statements. The Board said that those requests, made by the employee relations manager at the Phoenix store, were narrowly focused and came during a company investigation into the employee’s sexual harassment claims. Fresh & Easy Neighborhood Mkt., Inc. |
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| The NLRB held that an interstate water company violated its bargaining obligation under federal law when it declared an impasse in contract negotiations and changed employee benefits without first informing state agencies there was a labor dispute in progress. The Board found that American Water Works Co. made illegal unilateral changes in employees’ health and disability benefits. The Board determined that even if contract renewal negotiations with the Utility Workers Union of America were at an impasse, the company failed to notify state mediation agencies as required by the NLRA. American Water argued there was no state agency that had jurisdiction over a labor dispute involving 66 employee units in 15 different states, but the Board rejected the company’s contention and ordered the company to compensate employees for losses they experienced as a result of the company’s unilateral changes. American Water Works Co. |
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| An NLRB ALJ found that Kellogg Co. legally locked out some 226 union members from its cereal plant in Memphis because a bona fide impasse had been reached in the wake of the BCTGM union’s refusal to negotiate proposals that were mandatory subjects of bargaining. The workers returned to work August 11, following a July 30 related federal court decision. The BCTGM Local 252G members employed at the Memphis plant had been locked out since October 2013, when contract negotiations stalled over Kellogg’s desire to use an alternative crewing schedule and also increase its use of “casual” workers at the plant. The casual workers would receive lower wages than their union-represented counterparts and no benefits. Kellogg Co. |
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| An NLRB ALJ ruled that UnitedHealth Group Inc., violated federal labor law when it forced workers who had filed putative wage and hour class actions in federal court to instead arbitrate their allegations individually. Referencing the Board’s precedent in D.R. Horton – which determined that mandatory arbitration pacts requiring workers to waive their class or collective action rights violate the NLRA – the ALJ found that the UnitedHealth arbitration pact, as it precludes employee collective and class actions, violated the NLRA. United Healthcare Services Inc. et al. and Aviles et al. |
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| An NLRB ALJ ruled that jewelry retailers Tiffany & Co.’s confidentiality policy was overly broad in violation of the NLRA. The policy prohibits employees from disclosing information readily available on employee lists, including names, addresses, and phone numbers of other employees. However, the judge ruled that Tiffany’s one-sentence affirmation of employee rights under the Act “immunizes” the company from liability for maintaining an overbroad statement on wage and salary disclosures. However, the ALJ added that he reached that conclusion only because a savings clause appeared immediately after the wage-and-salary rule and expressly referenced the illegal provision. Tiffany’s savings clause did not excuse the retailer’s maintaining other policies that prohibited employees from releasing the names of employees or communicating with media organizations. Employees would reasonably understand those rules violated their rights under the NLRA, and the savings clause did not expressly mention the rules or confirm the employees’ statutory rights. The judge ordered Tiffany to cease and desist from enforcing its overbroad rule regarding employee lists. Tiffany & Co. v. Shaun Duncan. |
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| The NLRB reviewed and endorsed a 2012 ruling that the agency should order respondents in unfair labor practice cases to report back pay to the Social Security Administration and compensate employees for the tax consequence of lump-sum remedial payments. In 2012, NLRB Chairman Mark Gaston Pearce approved the policies in Latino Express Inc., along with then-Members Sharon Block and Richard F. Griffin. However, following the Noel Canning case, the Board decided to review the remedial issues de novo in the case of Don Chavas LLC, an Arizona food company that illegally discriminated against several employees for engaging in protected concerted activities. Pearce, joined in the new decision by Members Harry I. Johnson and Nancy J. Schiffer, said the Board is convinced that the remedial measures adopted in Latino Express “effectuate the policies” of the NLRA. Don Chavas, LLC. |
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| An NLRB ALJ found that Fox Television Stations Inc. did not breach any labor laws when it implemented an agreement with unionized Los Angeles-based engineers that had not yet been ratified by the union’s members. The ALJ recommended that a complaint lodged by a CWA Local be dismissed, finding that the union was unreasonable in its negotiations with Fox, and that it refused to stick to terms it had previously agreed to, according to the decision. Fox Television Stations Inc. and National Association of Broadcast Employees & Technicians, the Broadcasting & Cable Television Workers Sector of the Communications Workers of America, AFL-CIO, Local 53. |
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| A Wisconsin nursing home could not be liable for discontinuing a union dues checkoff agreement, because the U.S. Supreme Court’s recent Noel Canning decision undermined the only precedent supporting an unfair labor practice finding. At the time the NLRB General Counsel (GC) issued a complaint that Lincoln Lutheran Home illegally terminated a checkoff arrangement at the end of a union contract, Board precedent supported his position. However, an NLRB ALJ found that precedent was issued in 2012 when the Board lacked a valid three-member quorum. The ALJ found that the GC could not prevail against Lincoln Lutheran under the Board’s earlier position that a checkoff agreement terminates upon the expiration of an underlying contract. Lincoln Lutheran of Racine. |
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| The NLRB announced that it ratified three regional director appointments and five administrative law judge (ALJ) selections made during the tenure of Board members that the U.S. Supreme Court recently ruled, in Noel Canning, had been invalidly appointed. In response, the NLRB unanimously approved “all administrative, personnel and procurement matters taken by the Board” between January 4, 2012, and August 5, 2013, when the five-seat labor Board lacked the three-member quorum it needs to operate because of the “recess appointments” successfully challenged by soda bottler Noel Canning. |
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| The NLRB General Counsel’s Division of Advice concluded in a memorandum that the NLRB can and should assert jurisdiction over businesses that grow, process, and retail medical marijuana if they meet the Board’s monetary coverage standards. NLRB Associate General Counsel Barry J. Kearney wrote that the Board has clear statutory authority over employers in an already-sizeable medical marijuana industry in which labor disputes can affect interstate commerce. Kearney acknowledged that Northeast Patients Group, which does business as Wellness Connection of Maine, is operating in violation of the federal Controlled Substances Act, but found that the NLRB should not decline to assert jurisdiction over the employer on that basis. The Division of Advice also concluded that marijuana processors working for the company are employees under the NLRA rather than agricultural laborers outside the Act’s protection. The UFCW filed unfair labor practice charges against Wellness Connection in May and June 2013, alleging the employer engaged in illegal interrogation, surveillance, and discrimination. |
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| The National Mediation Board (NMB) ruled that American Airlines and US Airways are operating as a single transportation system, allowing for a union to be selected to represent some 15,000 pilots at the merged carrier. The finding, which was sought by the Allied Pilots Association (APA) representing 9,859 American pilots, was opposed by the U.S. Airline Pilots Association, the bargaining agent for 5,121 premerger US Airways pilots. Next, the Board said it will determine union representation for the combined group and whether to hold a representation election. The unions were given 30 days to submit evidence of the required majority support from the new American’s pilots, such as signed authorization cards, seniority lists, or dues checkoff lists. Alternatively, after the 30-day period, the NMB could simply decide to certify APA as the union for the combined group. Allied Pilots Ass’n. |
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| An Illinois appeals court denied a bid by six ALJs for the Illinois Commerce Commission (ICC) to join a union, ruling that they are “managerial employees” and thus barred from collective bargaining under state law. A unanimous three-judge panel upheld a decision by the Illinois Labor Relations Board that blocked the judges from joining an American Federation of State County and Municipal Employees unit, agreeing that the judges had enough influence over the utility regulator’s decisions to be considered management. While the ALJs only issue recommendations that the five ICC commissioners are not bound to accept, the panel pointed to testimony from the Chief ALJ that the commissioners agree with the judges “99 percent” of the time. American Federation of State County and Municipal Employees, Council 31 v. the Illinois Labor Relations Board et al. |
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| The UAW was named in a suit by temporary workers in Michigan auto plants who accused the union of forcing them into bad contracts and accepting union dues from the workers without proper representation. The three-count complaint by nearly 200 workers of the Automotive Component Holdings, accuses UAW of failure of duty of fair representation, breach of contract, and fraudulent representation. In the suit, the workers accuse the UAW of breach of contract and fraudulent representation for its role in a string of employment changes going back to the 2009 bankruptcy of former Ford subsidiary Visteon Corp., an auto parts supplier spun off from the auto giant in 2000. They claim they endured bankruptcies and transfers to other plants, all while being treated differently than Ford UAW members. The workers seek restoration of their seniority to the dates they worked for Visteon, and not for subsequent plant operators. They also seek, among other remedies, the return of lost wages that resulted from UAW’s alleged failure to enforce contracts and a return of all union dues and initiation fees. Barker et al v. International United Auto Workers. |
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| The British Columbia Labour Relations Board (BCLRB) upheld a unfair labor practices complaint filed by Teamsters Local Union 213 against Ikea Canada. The Board concluded that Ikea violated Canadian labor law when it negotiated directly with workers and offered all workers who crossed the picket line better working conditions (including a $2.50 an hour premium and a $500 bonus) than the working conditions that it had offered to the Teamsters at the bargaining table. The Board also affirmed that Ikea negotiated in bad faith. The BCLRB ordered Ikea to cease and desist from contravening the law and from committing further unfair labor practices. The employer was also ordered to pay damages to the Teamsters. The employees of the Ikea store in Richmond, British Columbia, have been locked out since May 13, 2013. Ikea Canada Limited Partnership v. Teamsters Local Union No. 213. |
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| The AFL-CIO announced on July 31, 2014 that it will direct resources to legislative and gubernatorial races at the state level and to a handful of U.S. Senate races in the upcoming midterm elections. Michael Podhorzer, AFL-CIO political director, said the federation had two main focuses for the 2014 election: “reclaiming state offices that were lost in 2010,” and making sure Democrats maintain control of the Senate. As for Senate races, Podhorzer said the AFL-CIO would be focusing on states with high union density, including Alaska, Colorado, Michigan, Iowa, and Kentucky, where Senate Minority Leader Mitch McConnell (R) is up for re-election. |
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| The NLRB issued a memorandum on, OM 14-77, directing that NLRB regional offices that discover an employer’s apparent violation of the Occupational Safety and Health Act (OSHA) or the Fair Labor Standards Act (FLSA) should then advise employee charging parties of their rights to file a complaint with the U.S. Department of Labor. |
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| The Retail, Wholesale and Department Store Union (RWDSU) re-elected Stuart Appelbaum as president. Appelbaum has been president of the New York City-based RWDSU since 1998. The RWDSU represents about 100,000 members nationwide. |
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| At the USW convention in Las Vegas, Nev., delegates approved a resolution to redouble their efforts not only to organize new workers, but to recruit dues-paying members in workplaces that already have USW representation. Thomas Conway, the USW international vice president for administration, told the delegates that the union has estimated that there are as many as 50,000 potential members who were “not paying their fair share” of the costs of administering contracts. Delegates also heard from Senate Majority Leader Harry Reid (D-Nev.), who told them their support was essential to keeping the Senate in Democratic control in the midterm elections, as Sen. Elizabeth Warren (D-Mass.), in a video address, discussed potential changes to labor laws to help strengthen unions. |
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September 18, 2014 |
| Employment Issues for Growing Companies eLunch |
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September 2014 |
| California Appeals Court Requires Reimbursement for Employee Personal Cell Phones Used for Work-Related Calls |
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| August 2014 |
| President Obama Issues Fair Pay and Safe Workplaces Executive Order |
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| August 2014 |
| Illinois Governor Signs Bill to Limit Employers’ Usage of Payroll Cards |
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| August 2014 |
| DOL Issues Proposed Rule Requiring Contractors to Disclose Compensation Data |
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| August 2014 |
| Illinois Amends Human Rights Act to Extend Pregnancy Protections |
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| August 2014 |
| Illinois Extends Employment Protections to Unpaid Interns |
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| If you have questions about items that appeared in this bulletin, or would like to learn more about any of these topics, please contact William Miossi at (202) 282-5708 or (312) 558-6109, or one of the other Labor & Employment Relations attorneys listed here: |
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