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| A divided National Labor Relations Board (NLRB or Board) issued its long-anticipated Final Rule governing union representation-case procedure. The Board majority asserts that the Rule is intended to “modernize election processes, enhance transparency, and eliminate litigation and delay.” However, many refer to the changes as “ambush election rules,” and dissenting Board members assert that the Rule diminishes the Board’s role, offends due process, free speech and privacy rights, and is generally unwarranted. The Rule represents dramatic changes for the union organizing process. Among many other things, the rule allows for electronic filing and other mechanisms. The new procedures will take effect on April 14, 2015. The full text of the Rule is available here and an NLRB fact sheet and comparison chart are available here. For more details, see our client briefing, NLRB Issues Final Rule Regarding Representation Cases. |
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The United Auto Workers (UAW) filed a representation petition seeking to unionize graduate students at Columbia University and the New School in New York. Graduate Workers of Columbia- United Auto Workers (GWC-UAW) claims that nearly 1,700 of the approximately 2,800 research assistants (RA) and teachers assistants (TA) working at Columbia have signed union authorization cards with the GWC-UAW. Although Columbia previously opposed an effort for RAs and TAs to unionize, the university has since signed a neutrality agreement. |
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Volkswagen Group of America Inc. announced that more than 45 percent of the workers at its assembly plant in Chattanooga, Tenn. have designated the UAW as their representative. Under the company’s recently adopted community organization engagement policy, the UAW now has access to company space for meetings, bi-weekly meetings with human resources, and other top-tier engagement opportunities. The policy leaves the door open for the company to engage with multiple employee representatives, and some plant employees are working with the American Council of Employees in an attempt to also secure engagement rights. The UAW’s seeks to secure voluntary recognition as the exclusive representative and a space on the VW Global Works Council. |
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Voting 222-183, workers at the Millstone Power Station in Waterford, Conn. rejected the International Brotherhood of Electrical Workers (IBEW) Local 457 as their bargaining representative. The vote count was postponed while the NLRB resolved the union and company’s dispute over the appropriate bargaining unit. The union sought to represent a unit of only 350 workers, but Millstone Power Station argued the appropriate unit should consist of between 800 and 1,080 workers. Two earlier organizing efforts at the Millstone Power Station failed in 2002 and 2007. |
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Bicycle share employees at affiliates of Alta Bicycle Share Inc. (Alta) around the country have elected the Transportation Workers Union (TWU) as their exclusive bargaining representative. Groups of employees at Hubway in Boston, Capital Bikeshare in Washington, D.C., and Divvy in Chicago, all voted for TWU representation. Employees at Citi Bike in New York signed union authorization cards and the company chose to voluntarily recognize TWU instead of forcing a vote. |
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Nurses at Robert Wood Johnson University Hospital in Somerset, N.J. voted, 204-170, in favor of representation by the United Steelworkers. The bargaining unit includes 432 registered nurses. The Steelworkers also represent nurses at the Robert Wood Johnson University Hospital in New Brunswick. |
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Kellermeyer Bergensons Services, an Ohio-based cleaning contractor, signed a card check neutrality agreement with Centro de Trabajadores Unidos en Lucha (CTUL) and the Service Employees International Union (SEIU) that recognizes its employees’ right to organize. The agreement avoided the possibility of threatened Black Friday strikes. CTUL and SEIU have been working to put pressure on cleaning companies to establish contractor policies encouraging contractors to cooperate with the unions. |
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The SEIU organized strikes at fast food establishments and other retail and home care businesses in 190 cities as part of its campaign to boost the minimum wage. The original fast food walkout took place in November of 2012 and included 200 fast food workers in New York. The movement has since spread to include cities like Jackson, Miss. Knoxville, Tenn., and Buffalo, N.Y. |
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Approximately 1,500 Graduate Teaching Fellows Federation members at the University of Oregon went on a one-week strike ending with the negotiation of a new labor agreement. |
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National Nurses United (NNU) represented nurses at MedStar Washington Hospital, in Washington D.C., conducted a one-day strike protesting staffing levels, wages, and benefits after the hospital made its last, best, and final contract offer. But, according to the hospital, 70 percent of nurses who were scheduled that day attended work. The hospital stated that though strikers only intended to protest for a day, they would not be able to return to work for 10 days because the nurse replacement agency required a minimum of a 10-day contract. |
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| Amid an unresolved labor dispute and pending litigation involving the Baltimore port, the International Longshoremen’s Association (ILA) placed its Baltimore Local 333 under a temporary trusteeship, reportedly an undisclosed member of the ILA’s executive council. The trusteeship follows a turbulent period for the local, including a three-day strike in October 2013 related to still-unresolved local contract negotiations with port management. An independent arbitrator found that the strike violated terms of the union’s master collective bargaining agreement, and later assessed a multi-million dollar penalty against Local 333. Local and regional management have sought relief in federal court to force the Baltimore local to comply with the arbitration award. |
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An analysis of data compiled by Bloomberg BNA through December 8 showed that the average first-year wage increase for all settlements was 2.1 percent, compared with 2 percent in the comparable period in 2013. The median first-year wage increase for settlements reported to date in 2014 was 2 percent, the same increase reported in 2013, and the weighted average was 2.6 percent, compared with 1.9 percent in 2013. The all-settlements (excluding construction and state and local government) average increase was 2.5 percent, compared with 2.7 percent in 2013; the median was 2.5 percent, an increase from 2.3 percent a year ago; and the weighted average was 2.6 percent, compared with last year’s 2.1 percent. When lump-sum payments were factored into wage calculations, the all-settlements average first-year increase to date in 2014 was 2.4 percent, the same increase reported a year ago. Median and weighted average increases were 2.2 percent and 2.9 percent respectively, compared to 2 percent and 2.9 percent increases from 2013. |
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Members of the Air Line Pilots Association ratified a 10-year collective bargaining agreement with Envoy Air Inc. The new agreement freezes wages for the first three years of the contract, eliminates profit sharing, and gradually increases pilots’ share of medical costs, but it also provides for signing bonuses and a new path for employment with Envoy’s parent company, American Airlines. The agreement covers 2,400 pilots. |
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Nine months after refusing to accept a contract proposal, a narrow majority of the 3,300 Alaska Airline flight attendants represented by the Association of Flight Attendants-CWA ratified a five-year collective bargaining agreement. The flight attendants will receive annual wage increases and longevity bonuses, but employee healthcare contributions will increase annually after 2015 throughout the term of the agreement. |
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After two years of negotiations, a majority of International Association of Machinist (IAM) members voted to ratify a new four-year labor agreement with Southwest Airlines. The agreement covers 6,000 passenger service and reservation agents, and provides for 8 percent wage increases over term and signing bonuses ranging from $1,200 to $1,740, among other benefits. |
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Employees at Huntington Ingalls voted in favor of a three-year extension their labor agreement at the Company’s Pascagoula, Miss. facility. The agreement cover 7,000 employees, and it provides annual wage increases, 12 paid holidays, signing bonuses, annual healthcare premium increases, increases in emergency room copayments, the launch of a family medical center, and new differentials in premiums for individuals, families, and smokers. Unions involved in the agreement include the Pascagoula Metal Trades Council, IBEW, the United Federation of Special Police and Security Officers, and the Office of Professional Employees International Union. The agreement does not cover IAM represented employees at Huntington Ingalls, as the IAM is still engaged in negotiations with Ingalls. |
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The Directors Guild of America (DGA) voted to approve the National Commercial Agreement (NCA), a three-year collective bargaining agreement with the Association of Independent Commercial Producers (AICP). The agreement is expected to cover nearly 3,000 directors during its term and includes 3 percent annual wage increases and increases in contributions to healthcare and pension plans. AICP members produce approximately 85 percent of commercials aired in the U.S. |
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The Pacific Maritime Association (PMA), which represents shipping lines and terminal operators at several ports in California, Oregon, and Washington, has requested the Federal Mediation and Conciliation Service (FMCS) provide assistance in concluding contract negotiations with the International Longshore and Warehouse Union (ILWU). According to the PMA, both parties are still far apart on key issues, and work stoppages and slowdowns are negatively affecting the industry. The agreement will cover nearly 20,000 port workers. |
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Approximately 1,000 restaurant employees at San Francisco International Airport ratified a new contract negotiated by UNITE HERE Local 2. The employees had been working without a contract for 16 months. The contract is retroactive to September 2013. |
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| A divided NLRB ruled that employees have a presumptive statutory right to use their employers’ email systems for non-business purposes, including communicating with one another about union organizing. The decision overturns the Board’s prior precedent in Register Guard, which held that employees do not have a statutory right to use their employers’ email systems to engage in “Section 7 activities” like union organizing. The three-member Board majority concluded that Register Guard was “clearly incorrect,” reasoning further that email usage in the workplace has dramatically changed in the years since it was decided. The Board majority called its decision “carefully limited” to workers who had been previously given access to emails and where businesses cannot justify a complete ban of personal use on emails by pointing to special circumstances making such a ban necessary. One dissenter argued that the new standard violates the First Amendment by requiring employers to pay for speech that they do not support. Purple Communications, Inc. For more information see our recent client briefing, NLRB Rules Employees have Statutory Right to Use Business Email Systems for Non-Work Purposes, Including Union Organizing. |
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| Affirming an Administrative Law Judge’s (ALJ’s) decision, the NLRB ruled that Mercedes-Benz violated the National Labor Relations Act (NLRA) by prohibiting the distribution of labor materials in company “team centers.” Mercedes-Benz argued that they should be able to prohibit distribution of union materials in team centers because they were adjacent to work areas and special circumstances warranted the prohibition. The NLRB disagreed and ordered Mercedes-Benz to stop prohibiting employees who are off the clock from distributing to other nonworking employees. Mercedes-Benz U.S. Int’l, Inc. |
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| The U.S. District Court for the Southern District of New York denied the NLRB’s request for an injunction forcing a transportation company to recognize and bargain with the Teamsters after finding the union did not represent a majority of the bargaining unit employees. Allways East Transportation in New York (Allways) won a contract to provide transportation services in Dutchess County, N.Y., taking over operations once performed by Durham School Services. Allways hired several former Duham drivers and monitors, who were represented by Teamsters Local 445. The union demanded recognition as the employees’ bargaining representative and filed unfair labor practice charges when the company refused to recognize the Teamsters. The acting NLRB regional director filed a petition for a preliminary injunction requiring the company to recognize and bargain with the Teamsters. The district held that Allways could only be a successor if the Teamsters represented a majority of employees in the bargaining unit, and because the bargaining unit consisted on two terminals, there was no evidence of majority representation. The court further noted that while a single-facility unit is presumptively appropriate, that presumption is rebutted where, as in this case, there are interchanging employees who performed the same jobs and possessed the same skills, trainings, and certifications and centralized supervision. Murphy v. Allways East Transp., Inc. |
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| An NLRB ALJ found that Cablevision Systems Corp. (CSC) violated federal labor law when it discharged 22 employees that were participating in a union protest. The Communications Workers of America (CWA) represents a unit of 300 CSC employees in Brooklyn, N.Y., but the union and company have not been able to reach a collective bargaining agreement. The CWA filed charges after 22 employees protested the stalled negotiations and were subsequently told that they had been replaced. The ALJ found that, although factual disputes existed as to whether the employees were actually on strike, CSC had told the workers that they had been “permanently replaced” in violation of Section 8(a)(1) and (3) of the NLRA. The ALJ also sustained allegations that CSC interfered with employee labor law rights by attempting to discourage support for the union when it promised improved wages and benefits, and solicited employee grievance procedures. The ALJ, however, threw out other charges alleging that CSC engaged in surface bargaining. CSC Holdings, LLC. |
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| An NLRB ALJ ruled that SBM Management, a cleaning company located in Virginia, violated the NLRA by giving employees bonus checks six days before a representation election. The ALJ recognized that the bonuses may have been given in response to the employees’ stellar performance, but the company did not produce evidence to overcome the presumption that a pre-election gift of benefits is coercive. After SBM gave bonuses, Chemical Workers Union Council lost the election 20-8. The NLRB has since called for a second election. SBM Mgmt. Servs. |
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| In a split decision, the NLRB determined that Care One at Madison Avenue LLC violated the NLRA by posting a copy of its workplace violence policy and encouraging employees to treat each other with “dignity and respect.” After winning a close election, Care One management posted the policy along with a memo warning that threats, intimidation, and harassment are dischargeable offenses. The majority declared that while the policy itself may not be problematic, in context the memo and policy could be construed to prohibit Section 7 activity. The dissenting board member found that the employees have no statutory right to engage in threatening or violent behavior and thus there was no violation. Care One at Madison Ave. |
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| An NLRB ALJ found that Wal-Mart maintained an overbroad dress code policy that interfered with employees’ right to wear union insignia. The dress code prohibited employees from wearing logos other than Wal-Mart logos and “logos allowed under federal or state law.” The policy was later updated to allow for logos that were smaller than the Wal-Mart nametag. The ALJ found that the initial policy was not saved by requiring employees to determine their own rights. The ALJ found the updated policy was similarly overbroad and the NLRB had previously allowed union paraphernalia much larger than the Wal-Mart nametag. The ALJ found no basis for a claim that a Wal-Mart manager had engaged in surveillance, but also ruled that a different manager violated the NLRA by asking an employee if she was worried that organizing activity would cause the store to close and that the company selectively enforced the dress code policy to target union activity. Wal-Mart Stores, Inc. |
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| The NLRB dismissed an unfair labor practice charge against Babcock & Wilcox Construction Co., but took the occasion to change the established standing standard applied in deciding whether to defer unfair labor practice charges to arbitration. In a 3-2 decision, the majority ruled that the 30-year-old deferral standard set in Olin Corp. was inadequate. Under the new deferral standard a party seeking deferral must show: “(1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permits the award.” Dissenting Board members argued that the majority was disrupting a standard that has worked effectively for three decades. Babcock & Wilcox Constr. Co. |
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| The NLRB General Counsel issued 13 unfair labor practice complaints against McDonald’s alleging the company and its franchisees are jointly liable for labor violations. The complaints allege that McDonald’s and various franchise owners have engaged in threats, surveillance, discriminatory discipline, and other violations of the NLRA, in response to employees engaging in lawful organizing activity. The General Counsel’s theory of liability asserted against McDonald’s contradicts long standing precedent holding that franchisors and franchisees are not joint employers. Consolidated hearings to cover certain regions have been scheduled in Manhattan (Regions 2 and 4), Chicago (Regions 13 and 25), and Los Angeles (Regions 20 and 31). Hearings for the other complaints will be scheduled after the initial hearings have been finalized. |
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| The NLRB ruled that Pacific Lutheran University (PLU) is not exempt from NLRB oversight in a decision that altered the Board’s test for religious college faculty jurisdiction. The new test requires that a university show that it offers a religious educational environment and that it holds its teachers out as performing specific religious functions. According to the majority, PLU did not publicly represent that their faculty performed religious functions, making them identical to the faculty at non-religious institutions. The dissent suggested that the new test may run afoul of the First Amendment. Pacific Lutheran Univ. |
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| The NLRB held, 2-1, that a casino operator’s rule banning gossiping was lawful, but found that the casino’s insubordination rule prohibiting disrespectful conduct violated the NLRA. UNITE HERE Local 2850, representing approximately 160 employees at the casino, filed the unfair labor charges challenging several of Lytton Rancheria of California’s work rules. The Board majority found that an “unacceptable behavior” rule that prohibited “gossiping about other team members” was lawful. The majority deemed that gossip has an understood meaning and the rule would not reasonably prohibit or limit employees exercise of protected Section 7 rights. The dissent argued that the term gossip is broad and ambiguous, and therefore included a reasonable belief that it would include protected activity. A different Board majority found that the company’s rule prohibiting “insubordination or other disrespectful conduct” could reasonably be found to cover protected activity. The dissent, however, pointed to the several instances where the Board has found a ban on insubordination to be lawful and declared that disrespectful conduct is just a subset of that ban. Lytton Rancheria of Calif. |
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| The NLRB dismissed unfair labor practice related to alleged bad faith bargaining charges against FairPoint Communications Inc. The workers represented by CWA and IBEW have been on strike since October 2014, protesting stalled negotiations. The unions hope to appeal the NLRB’s recent dismissal. FairPoint Communications Inc. |
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| Lauren McFerran (D.) was confirmed along party lines, 54-40, by the U.S. Senate, and sworn in to the NLRB. McFerrran will serve a five-year term, set to expire December 16, 2019. Earlier in 2014, the Senate Health, Education, Labor and Pensions Committee voted 12-10, along party lines, to recommend confirmation of McFerran, who served most recently as chief labor counsel for the committee. McFerran replaces NLRB Member Nancy J. Schiffer, and the NLRB will maintain its current 3-2 Democratic majority. |
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| Wisconsin Right to Work (WRTW), an organization affiliated with Americans for Prosperity, was recently established to promote legislation to make Wisconsin a right-to-work state. The organization seeks to expand on Wisconsin Governor Scott Walker’s efforts in the “Budget Repair Bill” or 2011 Wisconsin Act 10, which require annual recertification elections and prohibitions on automatically collecting union dues for public employers. Since the law was enacted, there has been a decline in union membership among public employees in Wisconsin. |
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| Senator Elizabeth Warren (D-Mass.) will be the keynote speaker at an ALF-CIO summit in early 2015. The summit will focus on wages, which has been a key focus of Warren’s platform. Senator Patty Murray of Washington will serve as the ranking Democrat on the Committee on Health, Education, Labor and Pensions. With Republicans in control of the Senate, the HELP Committee will be chaired by Lamar Alexander (R-Tenn.) Sen. Murray replaces Sen. Tom Harkin (D-Iowa). |
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| Salvatore Lagrosse, a former New Jersey pier dock supervisor and member of the International Longshoremen’s Association (ILA) Local 1235, was sentenced to 12 months for his role in a conspiracy to extort money from other ILA members. Lagrosse was one of three defendants in a multi-district organized crime case to plead guilty. The scheme, which also allegedly involves the Genovese organized crime family, involved coercing, through threatened and actual violence, ILA members to make tribute payments around the time that they received payments from the Container Royalty Fund. Vincent Aulisi, a former ILA president, will also serve an 18-year sentence for the part he played in the conspiracy and Thomas Leonardis, another former ILA president, will serve 22 months for his role. |
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2/19/2015 |
| Internal Investigations eLunch |
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12/29/14 |
| Illinois Pregnancy Rights Notice Posting Requirement Effective |
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| 12/12/14 |
| NLRB Issues Final Rule Regarding Representation Cases |
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| 12/12/14 |
| NLRB Rules Employees Have Statutory Right to Use Business Email Systems for Non-Work Purposes, Including Union Organizing |
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| 12/11/14 |
| Supreme Court Holds Time in Security Screening Noncompensable |
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| 12/10/14 |
| San Francisco Enacts Retail Workers Bill of Rights |
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| 12/10/14 |
| Sure You Can Use Your Phone: Personal Mobile Devices and the Workplace |
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| 12/09/14 |
| DLSE Publishes Notice and Poster Related to California’s Paid Sick Leave Law |
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| 12/05/14 |
| DOL Issues Final Rule Protecting Workers from Discrimination Based on Sexual Orientation and Gender Identity |
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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 Department attorneys listed here: |
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