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| The National Mediation Board (NMB) certified the Association of Professional Flight Attendants as the bargaining representative for 24,000 American Airlines employees, including those at merger-partner US Airways who were previously represented by the Association of Flight Attendants-CWA. Also, the Allied Pilots Association became the representative bargaining agent for the nearly 15,000 pilots at the merged American Airlines. The NMB designated the Association after it found that American Airlines and US Airways had sufficiently merged to form a single transportation system for representation purposes. |
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| After losing a union representation election in February 2014 at Volkswagen’s Chattanooga, Tenn. assembly plant, the United Auto Workers’ (UAW) Local 42 announced the formation of a members-only local. The Union claims more than 700 Chattanooga Volkswagen employees have voluntarily joined the members-only local, which is seeking to have Volkswagen recognize it as the official representative of the employees. Once that occurs, UAW Local 42 will seek exclusive representation of all related employees. |
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| The Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTWGM) is beginning to reorganize Hostess plants, re-opened under Hostess Brands, LLC, following the company’s filing for bankruptcy and liquidating operations in 2012. The BCTWGM has received enough votes to earn representation at Hostess plants in Columbus, Ga., Shilling Park, Ill., and Indianapolis, Ind. In July 2013, Hostess Brands, LLC restarted production of their signature baked goods at four production facilities with a workforce of 1,500 employees. |
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| The International Association of Machinists (IAM) is attempting to reorganize the labor force at Boeing Company’s airplane manufacturing campus in North Charleston, S.C., five years after employees voted to decertify the IAM. IAM is also trying to gather support for unionization at an Airbus plant currently under construction in Mobile, Ala. (to start production in 2015). |
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| Adjunct professors at the College of St. Rose in Albany, N.Y., elected the Service Employees International Union (SEIU), by a vote of 175-61, as their union representative. This is the first organizing victory for part-time faculty for SEIU Local 200 United. |
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| On September 4, 2014, thousands of fast food workers in 150 cities throughout the United States staged their 11th single-day strike, continuing their call for fast food restaurants to pay a $15 minimum wage and acknowledge employees’ union rights. For the first time, however, protesters coordinated their efforts with acts of civil disobedience, including intentionally blocking traffic and ignoring police warnings. Also, fast food workers in five cities received support on the picket lines from home health care workers. |
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| On September 17, 2014, approximately 50 baggage handlers, passenger services employees, skycaps, and wheel chair attendants at JFK airport in New York walked off the job to call attention to their contract employer Alstate Maintenance LLC’s efforts to block an organizing campaign by the SEIU. The union claimed the strike was additionally intended to call attention to various unfair labor practices. |
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| A BNA analysis of collective bargaining data for all settlements through September 15 showed the average and median first-year wage increase for settlements reported to date in 2014 were the same as in 2013: 2 percent. Additionally, the weighted average was 2.6 percent, compared with 1.6 percent in the same period in 2013. There was an average 3 percent increase when omitting construction and state and local government contracts. This percentage is down from 3.2 percent for the comparable time period last year. There was an average 2.3 percent increase when lump-sum payments were factored into wage calculations. The comparable period in 2013 reported a 2.4 percent increase. |
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| With 90 percent voting in favor, members of the International Alliance of Theatrical Stage Employees Local 1 voted to ratify a collective bargaining agreement with the Metropolitan Opera in New York, averting a lock-out that could have affected preparations for the 2014-2015 season. |
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| Retail grocery store workers represented by United Food and Commercial Workers (UFCW) Local 770 in Los Angeles, Local 8-Golden State in Roseville, Local 135 in San Diego, Local 324 in Buena Park, Local 1167 in Bloomington, Local 1428 in Claremont, and Local 1442 in El Segundo ratified a three-year agreement with Food 4 Less/Foods Co. covering approximately 6,500 workers at 100 grocery stores in California. Some of the terms of the agreement include: retroactivity until June 8, 2014; a total wage increase of 55 cents per hour; a one-time bonus for workers at the top of their pay progression scale; an increase in employer contributions to the employee pension plan; and no change in employer contributions for employee health and welfare benefits. |
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| UAW Local 2335 and Lear Corp. in Hammond, Ind. ratified a four-year labor contract covering nearly 800 employees. The tentative agreement was reached after the nearly 800 employees engaged in a work stoppage lasting two days. The contract provides for one pay scale for all employees (both full assembly and subassembly workers). However, full assembly workers will have the ability to progress to $21.58/hour, while subassembly workers will progress only to $15.25/hour. |
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| The Association of Professional Flight Attendants reached a tentative agreement with American Airlines covering some 24,000 employees. Though details have not been released and a ratification date has not yet been disclosed, union representatives claimed the agreement secured “the highest wages and best work rules” for flight attendants at any network carrier. |
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| UFCW Local 400 ratified a four-year contract with Kroger Co., covering 3,440 workers at 47 stores in Richmond, Va. and the Tidewater region in eastern Virginia. Although no details have been made public, the union disclosed that the contract includes wage increases (based on seniority) and preserves employee health and retirement benefits. The contract takes effect retroactively to August 3, 2014. |
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| International Brotherhood of Teamsters (IBT) Local 117 in Tukwila, Wash., reached a three-year contract with Kroger Co.’s Fred Meyer division covering approximately 400 workers at a distribution center. Though details of the contract are not available, the union has disclosed that the contract protects workers against subcontracting and is in line with industry standards. |
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| Officers and members of the International Union of Operating Engineers Local 150 brought federal preemption and constitutional challenges against Indiana’s Right to Work Act. The U.S. Court of Appeals for the Seventh Circuit held that the Indiana Right to Work Act was neither preempted by federal law nor violative of the constitution. The court reasoned that the longevity of many similar statutes, “coupled with a lack of disapproval expressed by the Supreme Court,” suggested that Indiana’s Right to Work Law is “within the realm of acceptable law.” The court also reasoned that the law does not violate the Equal Protection clause because “it does not implicate a fundamental right, and it passes the low bar of rational basis review with ease.” Sweeney v. Pence. |
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| The National Labor Relations Board (NLRB or Board) ruled 2-1 that the Hospital of Barstow, Inc.’s changing of a cardiac care and life support training program was a unilateral, material, and substantial change that affected employee compensation. The NLRB ordered the hospital to reimburse the California Nurses Association/National Nurses Organizing Committee for expenses incurred during the six months of contract negations that were “infected” by the hospital’s misconduct. Hospital of Barstow, Inc. |
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| A judge for the Northern District of New York granted a preliminary injunction to the United Steelworkers (USW) against Novelis, a national firm that recycles metal and produces rolled aluminum, to prevent unfair labor practices. The USW contended that Novelis coerced employees during an organizing campaign and maintained unlawful plant rules on solicitation, distribution, and social media use. The judge did not grant a bargaining order as requested by the union finding “[i]t is doubtful that imposing bargaining on Novelis at this juncture is necessary to prevent irreparable harm or to preserve the status quo.” Ley v. Novelis Corp. |
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| An NLRB Administrative Law Judge (ALJ) held that MUSE School CA, a private school in California, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it required its employees to sign confidentiality and nondisclosure agreements blocking them from disclosing information about the school, employees, students, student families, and its celebrity founders. The ALJ reasoned that such agreements prevented employees from engaging in their statutory right to discuss their wages, hours, and employment conditions. The ALJ also ordered MUSE School CA to review its employee agreements “to remove any language that prohibits or may be read to prohibit employees from discussing wages, hours, and other terms and conditions of employment.” MUSE Sch. CA. |
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| The NLRB held (3-2) that UFCW Local 700 complied with the Supreme Court precedent in Communications Workers of America v. Beck when it informed a new employee who worked at a Kroger LP grocery in Indiana that she could either join the union or pay non-member fees for union representation. The NLRB, relying on the three-step framework laid out in California Saw and Knife Works, reached this determination even though the union did not specify the fees and expenses the employee would be responsible to pay if she decided not to become a union member. United Food & Commercial Workers Local 700 (Kroger LP). |
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| The NLRB set aside Teamsters Local 734’s 20-16 loss in a union representation election after it found that a Chicago bakery and delivery company improperly interfered with the election. According to the NLRB, when translating an executive’s remarks into Spanish, in order to communicate with the nearly 80 percent Spanish-speaking workforce, the payroll administrator told employees that the company would replace employees with “legal workers” or a “legal workforce.” The NLRB reasoned that “[b]y telling non-English-speaking employees that it would replace them with ‘legal’ workers, the Employer communicated that their immigration status would be subjected to scrutiny.” Labriola Baking Co. |
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| The NLRB approved a 2008 ALJ decision finding that CNN America Inc. violated the NLRA when it terminated its relationship with a unionized subcontractor, Team Video Services LLC, in 2003, failed to bargain with the union that represented the employees who worked for Team Video Services LLC, and discriminated in hiring decisions to avoid becoming a successor employer under the NLRA. Team Video Services LLC provided camera crews and other technicians in Washington, D.C. and New York City. CNN claimed it terminated the contract with Team Video Services LLC to create a nimble staff suited to new digital technology. The NLRB called that explanation pretextual and is now requiring CNN to rehire about 100 union workers and pay back wages to about 200 employees who stayed with the network. CNN has filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit. CNN America Inc., et al. |
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| The NLRB found that Gates & Sons Barbeque of Missouri Inc. violated the NLRA when it stopped providing free meals to its workers after seven of them engaged in a one-day strike. The NLRB found that the employer failed to show that its actions were not due to the employees’ participation in the strike. The Board found that “[t]he evidence showed that prior to the strike the respondent did not give employees any indication that the meal benefit was about to be discontinued, or even in danger of being discontinued.” The NLRB required Gates & Sons to post a notice that it will not discriminate against workers for engaging in protected activity. It also required Gates & Sons to reinstate free meals and compensate those employees who suffered a loss of benefits from the “discriminatory discontinuation of the free employee meal benefit.” Gates & Sons Barbeque of Missouri Inc. |
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| The NLRB reversed an ALJ ruling and held that Dover Energy Inc. violated the NLRA when it warned a shop steward to stop submitting frivolous information requests (i.e., a request for information about the financial relationship between members of the union and the company “for the purpose of future bargaining” and a request seeking employee payroll records). After the shop steward submitted a request, the company asked the union’s president if she had authority to request such information, and each time the president said no. Despite this, the NLRB reasoned that Dover Energy’s warnings to the shop steward “would reasonably be understood to proscribe future protected activity.” The NLRB also noted that whether the shop steward’s requests were protected activity did not need to be determined in this case, but instead, that the inquiry was how she may have interpreted the warning (i.e., to circumscribe future protected activity). Dover Energy Inc. Blackmer Division v. Kaanta. |
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| The NLRB’s Division of Advice issued a memorandum stating that a social media policy requiring employees who identify themselves as employees of a company to disclaim on social media sites that “[t]he views expressed on this web site/blog are mine alone and do not reflect any view of my employer” was lawful. The Division of Advice reasoned that where an individual is identified as an employee of a company, his words might create the impression that he is speaking on behalf of the company, and that the employer has “a legitimate interest in protecting itself against unauthorized postings on its behalf.” U.S. Security Assocs., Inc. |
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| The NLRB’s Division of Advice (Division) released a memorandum stating that SEIU Local 87 did not violate the NLRA when it asked employer ABM to transfer a union employee to a new work location after workers complained that she was rude, intimidating, and disrespectful. The Division reasoned that the union’s decision did not appear to be motivated by animus, and it acted to protect the interests of the union as a whole. The Division stated that the union’s conduct “was rationally linked to its responsibility to effectively represent the bargaining unit as a whole” and was therefore lawful. Serv. Emps. Int’l Union Local 87 (ABM). |
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| The U.S. Court of Appeals for the Ninth Circuit held that Section 303 of the Labor-Management Relations Act does not preempt state law claims related to secondary boycott activity. The case arose out of a lawsuit by Retail Property Trust, a mall owner, against the international union Carpenters and Joiners of America and Local 803 for trespass and nuisance arising out of a protest that violated the mall’s rules for public use of common areas (i.e., protesters must fill out applications in advance and agree to stay within one of two designated common areas and may not make excessive noise, obstruct pedestrian traffic, damage property, use physical force, or use obscene language or gestures. The circuit court reasoned: (1) Section 303 does not always preempt state claims because it does not fully occupy the field of secondary union activity; (2) trespass and nuisance fall under a “longstanding” preemption exemption for conduct that affects “interests so deeply rooted in local feeling and responsibility”; (3) the conduct at issue was at most a “merely peripheral concern of federal labor law”; and (4) the claims concern only the application of time, place, and manner restrictions to raucous and threatening picket activity. Retail Prop. Trust v. Carpenters. |
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| The NLRB held that Purple Communications Inc.’s “no disruptions” policy, which prohibited employees from causing or participating in “a disruption of any kind during working hours on company property,” was unlawful under the NLRA. The Board also set aside the results of two union elections, stating that the “objectionable conduct, considered either in aggregate or separately, could have affected the election results.” The Board reasoned that the policy was too broad and interfered with employee rights to engage in concerted activity and union organizing. Purple Communications Inc. and Communications Workers of America. |
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| Cablevision Systems Corp. filed a defamation lawsuit against the Communications Workers of America Local 1109, District 1, District 1 official Christopher M. Shelton, and former employee Jerome Thompson. The complaint alleges that the defendants maliciously disseminated false and damaging statements about Cablevision. Cablevision and the union are currently deadlocked in negotiations for a new collective bargaining agreement. Cablevision Sys. Corp. v. Commc’ns Workers Dist. |
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| Republican Senator Lamar Alexander introduced the NLRB Reform Act, S.2814, which would, among other things: (1) add a sixth member to the NLRB; (2) limit partisan advocacy; (3) rein in the NLRB’s general counsel; (4) speed up the NLRB’s decision-making; (5) require four members of the expanded NLRB to agree in order for a decision to be issued; (6) synchronize the five-year terms of Board members; and (7) permit businesses and unions to challenge complaints by the Board’s General Counsel in federal district court. |
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| President Obama announced his intention to nominate Allison Beck, current Deputy Director for the National and International Programs at the Federal Mediation and Conciliation Service, to be the new director for the Service. |
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| John Kline (R-Minn.), Chairman of the House of Education and the Workforce Committee, and Phil Roe (R- Tenn.), Chairman of the Subcommittee on Health, Employment, Labor, and Pensions, sent a letter to NLRB General Counsel (GC) Richard F. Griffin requesting the following by September 30, 2014: (1) a description of the current “joint-employer” test; (2) a list of “[a]ll open complaints in which joint-employer status is an issue”; and (3) “[a]ny documents and communications” related to closed complaints where joint employment was at issue. Since the letter was issued, Republican senators have continued to ask GC Griffin for clarification and justification (i.e., on September 25, 2014, 25 lawmakers wrote a letter to Mr. Griffin seeking his rationale for his recent efforts to expand franchisers’ joint employer liability). |
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| Francis Sean O’Donnell, William Gillin, James Walsh, and Greg Sullivan, members of Ironworkers Local 401 in Philadelphia, Pa., pled guilty to arson, racketeering, and related charges after being indicted in February 2014 with other members of a “Shadow Gang” for setting fires, assaulting workers, and sabotaging property in order to force non-union employers to hire union labor. O’Donnell, Gillin, Walsh, and Sullivan are facing significant prison sentences (60 years, 110 years, 110 years, and 40 years, respectively) as well as hefty fines ($750,000, $1.5 million, $1.5 million, and $500,000, respectively). |
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| A Gallup, Inc. opinion poll showed that: 53 percent of respondents approve of labor unions; 71 percent of respondents would vote for right-to-work or “open shop” legislation; 45 percent of respondents said they had not heard of right-to-work or “open shop” legislation; 20 percent of households surveyed had at least one union member; and 49 percent of respondents think labor unions will become weaker in the future; 21 percent think they will become stronger, and 25 percent foresee little change (the rest had no opinion). |
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| The AFL-CIO launched a new advertising campaign—the “Koch sisters”—to draw contrast to the Koch brothers, who the union asserts are “right wing secretive billionaires who use their wealth to subvert democracy and enact a self-serving agenda at the expense of working families.” The campaign is intended to “expose the destructiveness of money in politics, generally, and the Koch brothers specifically.” |
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| October 24, 2014 |
| Woody Lay and Eric Zion to speak at North Carolina/South Carolina Labor and Employment Law Conference |
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| November 5-8, 2014 |
| ABA Annual L&E Conference, Emerald sponsor: Joe Torres, M. Dunham, Julie Capell presenting |
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| November 13, 2014 |
| Joe Torres to speak at NELI 2014 Chicago Labor & Employment Law |
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| September 3, 2014 |
| California Appeals Court Requires Reimbursement for Employee Personal Cell Phones Used for Work-Related Calls |
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| September 17, 2014 |
| California Enacts Paid Sick Leave Law |
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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 attorneys listed here: |
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