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| Shuttle bus drivers employed by Compass Transportation, Inc., which provides shuttle bus transportation services for employees of Apple Inc., Yahoo Inc., eBay Inc., Genentech Inc., Zynga Inc., and Amtrack voted, 104-38, to elect the International Brotherhood of Teamsters as their bargaining representative. The union hopes to achieve a contract similar to one recently reached covering Compass shuttle drivers for Facebook employees. |
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| The International Association of Machinists (IAM) filed a representation petition seeking to hold a representation election for more than 2,400 workers at Boeing Company’s manufacturing plant in North Charleston, South Carolina. |
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| UNITE HERE Local 25 and D.C. United signed a “labor peace” agreement, a deal in which the D.C. soccer franchise will refrain from interfering with the union’s efforts to organize hospitality workers who will be employed at the team’s proposed stadium. The new stadium, projected to be completed in 2017, is expected to generate hundreds of jobs, not only at the stadium, but also at the 200-room hotel that the owners of D.C. United are erecting next to the new stadium. |
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| Following stalled contract negotiations, ADT Corp. locked out 19 International Brotherhood of Electrical Workers represented installation and service technicians from its Winston-Salem, N.C. facility. |
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| The fast-food workers’ campaign, “Fight for $15,” announced that it will resume nationally coordinated walkouts and protests on April 15. Fight for $15, receiving financial and strategic backing from the SEIU, said the 13th single-day strike by fast-food employees is scheduled in more than 200 U.S. cities, and for the first time, the strike will coincide with protests by students and adjunct professors on some 170 college campuses. The campaign also has tried to gain leverage by filing hundreds of unfair labor practice charges with the NLRB against McDonald’s USA and franchisees, alleging retaliation against workers who participated in past Fight for $15 protests and strikes. |
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| New York University and a United Auto Workers (UAW) local reached a tentative agreement on graduate student representation. The deal includes wage hikes and health premium savings for graduate assistants. Under the terms of the tentative agreement, NYU graduate assistants will now earn $36,600 per academic year, a $1,000 increase from their salary last year. The university will also implement a tax-free child care fund to take effect January 1, 2016, and cover basic dental work for all graduate students, in addition to offering subsidies of up to 75 percent to cover family premiums. |
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| United Airlines reached a cost-saving agreement with IAM represented aircraft fleet-service workers, avoiding the planned outsourcing of 800 of 1,100 aircraft fleet-service jobs. The agreement provides for reductions in wage rates of $2 per hour for the top base rate and a similar reduction in other pay grades, a suspension of United’s contributions to 401(k) plans, and allowing flexible scheduling, such as split shifts. |
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| The United Steelworkers reached a tentative four-year contract with Royal Dutch Shell Plc. If implemented, the deal would end a nationwide strike that began on February 1, 2015. The proposed agreement includes annual wage increases, maintains the current ratio of the union’s health-care plan, and contains language addressing the union’s concern with worker fatigue. |
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| The American Association of University Professors-American Federation of Teachers has reached a tentative four-year labor agreement with Rutgers University. The proposed agreement covers about 4,700 faculty members and teaching assistants. The tentative agreement provides that the university can only employ a “subject to” clause – limiting salary increases to university funding – if there is an emergency and financial documents support limiting raises. Other key provisions of the agreement include more flexible parental leave, better salary increases for professors who demonstrate sustained excellence, and a 2.5 percent increase for tenure-track assistant professors who meet certain criteria. |
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| Service Employees International Union Local 32BJ members voted unanimously to ratify a four-year contract with the Bronx Realty Advisory Board covering more than 3,500 workers in 1,000 New York apartment buildings. The contract will provide each full-time employee with a wage increase of $10 per week in the first three years, and $14.75 per week in the fourth year. This agreement varies only slightly from the previous contract. |
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| Members of an International Longshoremen’s Association at the Port of Baltimore negotiated a settlement with port management that was narrowly ratified. The settlement guarantees wage increases for approximately 1,000 longshoremen and deep sea cargo workers. An ILA trustee, who was appointed in December 2014 to replace local officers, helped negotiate the settlement. The settlement resolves a dispute spanning over 18 months between the two sides, and pardons a $3.9 million arbitration award the union was ordered to pay the port due to an unauthorized strike in October 2013. Based on the terms of the settlement, the union will only have to pay $1 million of the award, and only if it violates a no-strike clause of its master contract with the U.S. Maritime Alliance, which covers 14,500 workers on the East Coast and Gulf Coast ports, including Baltimore. |
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| UNITE HERE and MGM Grand Las Vegas reached a tentative four-year contract covering approximately 4,000 casino workers. The agreement allows the workers to keep their health insurance and pension benefits unchanged, and has provisions that aim to bring laid-off workers back to work. |
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| United Auto Workers leaders held a special convention on collective bargaining in Detroit. The stated purpose of the convention was to “bridge the gap” between wages of senior workers, newer employees, and contingent workers. The union officials voted on a resolution meant to serve as a blueprint for its negotiations with General Motors Co. and FCA US, the Fiat Chrysler Automobiles NV unit. In addition to bridging wage gaps between union workers at all levels, other stated bargaining priorities include restoring outsourced jobs, protecting health-care and retirement benefits, and protecting workplace health and safety rights. |
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| Data compiled through March 10, 2015 by Bloomberg BNA showed that the average first-year wage increase was 2.8 percent, one percent higher than the comparable period last year. Manufacturing agreements had an average increase of 1.8 percent, which is lower than the 2.3 percent reported in the comparable period last year. Outside of construction and state and local government contracts, the average all-settlement increase was 3.4 percent, higher than the 2 percent in 2014. State and local government agreements also increased, on average, 2.2 percent, which is higher than the 1.6 percent increase in 2014. Including lump-sum payments, the first year average increase was 4.1 percent, higher than the 3.1 percent in 2014. Outside of construction, the nonmanufacturing increase was 4.2 percent, higher than the 2.2 percent in 2014. |
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| In Canada, large collective bargaining agreements reached in January 2015 provided covered employees with wage increases of 2.4 percent on average. This is up from the 1.5 percent average increases in November and December 2014 according to Labour Canada. The January figure is comprised of nine collective bargaining agreements, covering 16,860 employees over an average of 54.2 months. The sector with the largest growth was transportation with a 2.8 percent average increase, trailed by information and culture at 2.6 percent, public administration and education at 2.6 percent, and health and social services at 2.0 percent. |
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Seattle University has asked the NLRB to review a regional director’s order to reopen ballots cast by contingent faculty in a representation election, arguing that the Board’s recently adopted Pacific Lutheran University test was wrongly applied by the regional director and that the Board should reconsider its test. In Pacific Lutheran, the Board ruled 3-2 that employees of colleges and universities may choose union representation unless the institution shows that: (1) it holds itself out as providing a religious educational environment, and (2) it holds out faculty who seek unionization as performing a specific role in creating or maintaining that religious environment. The NLRB’s Seattle office’s regional director found that the university did satisfy the first part of the test, but found that the university did not hold out applicable faculty members as performing a religious function, and therefore failed to meet the second stage of the test. In its appeal of the order, the university argued that nontenured professors in the proposed bargaining unit “serve a specific role in promoting the university’s religious mission.” Further, the university asked the Board to reconsider the Pacific Lutheran standard, arguing that it “contravenes” the U.S. Supreme Court’s holding in NLRB v. Catholic Bishop of Chicago. The university also argued that the regional director deprived the school of due process by not reopening the record to weigh new evidence that addresses the “specific religious function” test in Pacific Lutheran. Seattle Univ. |
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| The NLRB reversed an Administrative Law Judge’s deferral to an arbitration award finding that Verizon New England Inc. was justified in telling its workers to remove picket signs they placed in windows of their cars parked on company property. The arbitration panel denied union’s grievance of unfair labor practices, holding that the workers waived their right to picket under a “no strike” provision of their contract. The Board majority found that the arbitration award’s conclusions – that the display of signs in employees’ parked vehicles constituted picketing and that the contract’s no-picketing provision – was intended to cover such conduct were not susceptible of an interpretation consistent with the Act. Verizon New England Inc. |
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| The U.S. Court of Appeals for the Fourth Circuit held that a transit agency did not violate an arbitration award ordering it to reinstate two police officers who were fired for alleged misconduct when it terminated the police officers a second time when they were not granted re-certification to serve as police officers in Maryland. The officers lost their authority to conduct police activities when they were initially discharged and were required to apply for recertification after the arbitrator’s decision ordering reinstatement. Maryland declined to recertify them, and the agency terminated the officers a second time. Overturning the district court decision, the Fourth Circuit held that an employer is able to discharge an employee after reinstatement when the basis for the subsequent discharge were not among the facts considered by the arbitrator. Fraternal Order of Police Metro Transit Police Labor Comm., Inc. v. Wash. Metro. Area Transit Authorit. |
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| The U.S. Court of Appeals for the Ninth Circuit, in a 7-4 decision, overturned a lower court’s order granting an injunction because an employer failed to show it made reasonable efforts to settle the underlying dispute as required by the Norris-LaGuardia Act. The district had granted the injunction under the Railway Labor Act (RLA), preventing a threatened strike by aircraft fuelers at Seattle-Tacoma International Airport protesting Aircraft Service International Group’s alleged retaliation against an employee who complained about workplace safety. The Ninth Circuit held that the district court erred in concluding that the RLA’s application to the matter prevented the Norris-LaGuardia Act from also being applicable. Specifically, the circuit court found that Norris-LaGuardia’s “clean hands” provision applies to cases involving unrepresented workers who vote to strike. The Ninth Circuit determined that employers need to make every reasonable effort to resolve disputes with their employees, such as through good faith negotiations, prior to going to court to attempt to preempt employees’ concerted activity through an injunction. Aircraft Serv. Int’l, Inc. v. Working Wash. |
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| A district court in Oregon has ordered a longshore union to pay nearly $60,000 to the NRLB for violating a court order to resume normal operations at the Port of Portland’s container terminal. The district court ruled in December 2014 that the International Longshore and Warehouse Union continued to slow work even after a court order to get back to normal speed. The action is part of the long-running struggle, dating back to 2012, between the union and the port’s terminal operator ICTSI Oregon, which has cost the port in business. National Labor Relations Board Region 19 v. International Longshore and Warehouse Union et al. |
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| Speaking at a meeting of the American Bar Association’s Railway and Airline Labor Law Committee, Harry Hoglander, a National Mediation Board member, stated that the test for Railway Labor Act jurisdiction should be whether a contractor’s employees act as “agents” of the airline, rather than whether they are employees in a split decision issued in October 2014, all three members of the NMB disagreed on the definition of what constitutes sufficient control by an airline over a contractor, such as baggage handlers and ramp workers, to make it a “derivative carrier” subject to the RLA. There the NMB majority found that the employees of contractors employed by Alaska Airlines’ contractor Menzies Aviation Inc., were not subject to RLA jurisdiction, even though contractor’s employees at other airports had been found to be so covered. |
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| The NLRB reinstated representation petitions from two UAW affiliates – the Graduate Workers of Columbia University and the Student Employees at the New School – to represent graduate assistants at Columbia University and The New School by remanding both cases back to the regional director, who had originally dismissed the petitions. The NLRB held that the UAW had raised “substantial issues warranting review.” The UAW had argued that the NLRB should overturn its Brown University decision, which denied collective bargaining rights to university graduate assistants on the basis that they had an academic, as opposed to employment, relationship with the school. New Sch.; Columbia Univ. |
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| An NLRB ALJ held that a sign language interpreting company’s email policy violated the rights of employees as outlined in a 2014 Board decision, Purple Communications, Inc. In that decision, the NLRB held 3-2 that employees who already have access to the company’s email system must be allowed to use the system for union related activity or concerted activity protected by the NLRA. Under the ruling, employers are not required to provide employees with emails solely for this purposes. Further, the onus is on employers to justify a total ban on non-work related use of company email, and can do so by showing there are “special circumstances,” which make the ban necessary to maintain discipline and/or production. Here, however, the ALJ found Purple Communications did not submit additional evidence showing that it had “special circumstances,” which justified limitations on employee e-mail use. Purple Commc’ns, Inc. |
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| An NLRB ALJ held that Latino Express Inc.’s company rules, as set forth in its employee handbook, which banned activities that would harm the operations or reputation of the company were overly broad and unlawful. The judge ruled against the bus company even though the company withdrew the rule almost one year ago, finding that the company failed to properly repudiate the rule and take remedial measures. The judge reasoned that because the rules were in place for almost two years, “their silent withdrawal [was] untimely.” Latino Express Inc. |
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| An NLRB ALJ ruled that a Nevada hospital system’s policy, which required employees to speak English at all times violated federal labor law because it could prevent workers from discussing the terms and conditions of their employment. The hospital’s policy provided that employees had to speak English only “when conducting business with each other,” around patients when they are “present or in close proximity,” as well as when employees are “on duty between staff, patients, visitors [and/or] customers” unless “interpretation or translation is requested or required.” The ALJ noted that this was a case of first impression, and held that the rule prevented employees from freely discussing their working conditions because it was “vague as to time and location.” The judge also held that the rule did not pass muster under a “business necessity” standard because it extended to non-patient areas as well as communications between employees amongst themselves. The ALJ also found that the hospital’s rule against negative speech against other workers and the hospital unlawfully violated the law. However, the judge did not find a similar provision banning negative speech about patients to be unlawful. Additionally, the judge found that the hospital’s confidentiality policy was unlawful under Section 8(a)(1) of the NLRA because it was too vague, but upheld the hospital’s policy requiring employees to sign an alternative resolution for conflicts agreement. Valley Health Sys. LLC. |
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| An NLRB ALJ found that T-Mobile USA Inc. violated Section 8(a)(1) of the NLRA by maintaining a policy which restricted, or could be interpreted as restricting, workers from discussing the terms and conditions of their employment. The policy in question was a statement of purpose in T-Mobile’s employee handbook which provided “t]his Handbook is a confidential and proprietary Company document, and must not be disclosed to or used by any third party without the prior written consent of the Company.” The ALJ found the provision broadly written and that “it would chill employees in the exercise of their Section 7 rights.” However, the judge upheld T-Mobile’s company policy which prohibits workers from using “photographic, audio, video, or any other recording devices in the workplace without authorization from a manager, the human resources department, or the legal department.” While the NRLB General Counsel argued that this rule was overbroad, the ALJ held that no cases were provided which made recording in the workplace a protected right. T-Mobile USA, Inc. |
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| Overturning an ALJ’s decision, a three-member NLRB panel ruled 2-1 that Howard Industries Inc. unlawfully threatened a union representative with suspension when he read a supervisor’s notes out load during his representation of a worker at an investigatory interview. The worker was being questioned about violating a work rule when his union representative began reading his notes out loud. The supervisor conducting the interview then told the union representative to close the notebook. When the union representative refused, the supervisor threatened discipline. The NLRB found that the union representative’s conduct during the interview was “protected under the act” and that the supervisor’s “threat to discipline him was therefore unlawful.” Howard Industries Inc. |
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| An NLRB ALJ ordered the Teamsters Local 210 to stop serving as the sole collective bargaining representative of custodial employees at New York’s John F. Kennedy Airport, after it found that the union did not have support from a majority of the Terminal 2 employees it sought to represent. The case stems from complaints brought by two employees of ISS Facility Services Inc., which contracts with Delta Airlines to clean Terminals 2 and 4 of the airport. The ALJ ordered the union to cease and desist from threatening employees with termination if they did not pay union dues and other unspecified consequences for complaining to the NLRB, and also ordered ISS to refrain from recognizing its agreement with Teamsters Local 210 on the ground that the union did not “represent a majority of those employees.” ISS Facility Services Inc. |
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| The NLRB held that Healthbridge Management LLC illegally fired one of its employees who led a “walk-in”. Patrick Atkinson, a nursing home worker, entered the administrator’s office, and along with 15 employees stood against a wall, and expressed concern that some employees had been suspended. The Board found that Atkinson’s comments to the administrator were “extremely mild” and rejected the employer’s position that Atkinson’s actions were outside protection of federal labor law. The Board applied the four factor standard, from Atlantic Steel Co., in determining whether an employee’s conduct is so egregious as to lose the Act’s protection: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was provoked by the employer’s unfair labor practices. Although the Board found that Atkinson’s outburst was not provoked by the employer’s unfair labor practices, it found that that the other three factors supported a finding that Atkinson’s “walk-in” was protected by the NLRA. The Board ordered reinstatement with back pay. Healthbridge Management LLC. |
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| A Wisconsin county circuit court judge voided a series of bargaining agreements between the Kenosha Unified School District and three of its unions finding the contracts included provisions, including fair-share union dues requirements, unlawful under 2011 Wisconsin law, “Act 10”. The court found that under Act 10 the public school employees in the Kenosha district cannot be forced to pay union dues to receive or maintain their job. Lacroix v. Kenosha Unified Sch. Dist. |
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| A federal district court in Rhode Island rejected requests for issuance of a temporary restraining order to prevent union-represented employees of a hospital from beginning a concerted refusal to work overtime in response to the hospital’s announcement that it was planning layoffs. The court was not moved by the hospital’s argument that it would suffer irreparable harm as a result of the employees’ refusal to work overtime, reasoning that the hospital had diverted patients to other facilities in the past during labor disputes. The judge also noted that the hospital could hire temporary nurses through staffing agencies, among other alternatives. New England Health Care Emps. Union, Dist. 1199 v. Women & Infants Hosp. |
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| The NLRB has ordered a New York City bakery to reinstate several undocumented immigrants it fired over a decade ago after the employees raised concerns about a host of abusive conditions at the bakery, including a lack of overtime pay and harassment by a supervisor, as long as they can show they are now allowed to work in the U.S. The Board determined, under Supreme Court precedent from 2002, that it was blocked from issuing back pay to the workers because of their legal status at the time they were fired. However, pursuant to another Supreme Court ruling from 1984, the Board determined that conditional reinstatement was an appropriate measure in the context of immigration-related cases. The NLRB’s reinstatement order is conditioned on the immigrants providing the bakery with a valid I-9 form and appropriate documentation of their legal status within a reasonable time. Mezonos Maven Bakery Inc. |
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| NLRB General Counsel, Richard Griffin, released a lengthy report, GC 15-04, addressing recent Board case developments in the context of employee handbook rules. The General Counsel’s insights are intended to provide employers with guidance in maintaining workplace policies that the Board would likely deem compliant with federal labor laws. The two-part report first examines the legality of various types of work rules and policies that are often challenged or otherwise at issue in Board litigation. Second, the report discusses handbook rules from recently settled unfair labor practice charges against Wendy’s International LLC, including discussions of the handbook rules that the Board deemed facially unlawful, as well as the modified “model” policies that were held to be acceptable under the settlement. See our recent client briefing, NLRB GC Releases Guidance on Employer Handbook Rules. |
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Obama Vetoes Joint Resolution to Block NLRB Quickie Election Rules
President Obama vetoed a joint resolution that sought to block the NLRB’s controversial amendments to policies for processing union representation cases. The President stated that he would not approve of any congressional legislation to overturn the NLRB’s amendments, what he considered “modest but overdue” reforms, to streamline union elections in the private sector. The Senate and House voted, on March 4 and 19 respectively, to pass a resolution blocking the NLRB from implementing the new “quickie” representation election process. The NLRB amendments will speed up the union election process, potentially allowing employees of a company to vote on union representation as soon as 11 days after filing a petition. Without further action, the rule will take effect April 14, 2015. For additional information regarding the NLRB’s Final Rule governing union representation-case procedure, see our client briefing NLRB Issues Final Rule Regarding Representation Cases. |
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| Wisconsin Governor Scott Walker signed Senate Bill 44 making Wisconsin the nation’s 25th right-to-work state. Right-to-work laws generally prohibit agreements between unions and employers that require, as a condition of employment, union membership and payment of union dues, or payment by nonmembers of agency fees for the union’s expenses related to collective bargaining, contract administration and grievance adjustment. S.B. 44 specifically “prohibits a person from requiring, as a condition of obtaining or continuing employment, an individual to refrain or resign from membership in a labor organization, to become or remain a member of a labor organization, to pay dues or other charges to a labor organization, or to pay any other person an amount that is in place of dues or charges required of members of a labor organization.” Additionally, S.B. 44 specifies that any violations of the law be treated as a “Class A misdemeanor.” |
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| The Illinois Attorney General sought to intervene in a matter filed in federal court by Illinois Governor Bruce Rauner seeking to validate his executive order, which prohibits state agencies from collecting fair share fees from state employees who do not wish to fund union activities. The Illinois AFL-CIO and 26 unions representing state employees are also challenging the Governor’s executive order, arguing that the order exceeds Rauner’s constitutional authority. |
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| The AFL-CIO announced it would freeze all political action committee donations to federal candidates, intensifying its position against the proposed Trans-Pacific Partnership trade deal. Under the Trade Promotion Authority (TPA), a fast-track trade negotiating authority, Congress would detail negotiating priorities for the White House to follow during trade talks. In return, the White House will submit these deals for amendment-free votes when the negotiations are complete. The AFL-CIO’s executive council criticized TPA, arguing that such an arrangement would allow the White House to “unilaterally determine whether congressional trade objectives have been met.” |
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| New Mexico Senate Democrats have essentially killed two right-to-work bills, which would have made it illegal to require employees to pay union fees as a condition of employment. However, Governor Susana Martinez (Rep.) may revisit the issue next year as right-to-work legislation is among her stated legislative priorities in the 2016 session. |
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| Senator Johnny Isakson (R- Ga.) introduced legislation, which would undo the NLRB’s 2011 decision in Specialty Healthcare & Rehabilitation Center of Mobile. In Specialty Healthcare, the NLRB ruled that a subset of nursing assistants within a larger group of workers could vote for union representation without consulting the other employees. Republicans and business groups have opposed the Board’s decision in Specialty Healthcare, arguing that it overstepped its authority in overturning established precedent that requires it to determine whether there are other workers outside of micro-units, which may share a community of interests. |
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| Rep. Jody Hice (R-Ga.), along with 13 Republican co-sponsors, introduced legislation, H.R. 1658, barring the use of “official time”—paid time spent by federal employees performing representational work for bargaining units in lieu of their regularly assigned work. The Federal Employee Accountability Act would prohibit federal employees from using official time to engage in collective bargaining or participate in arbitration on behalf of a federal employee who has brought a grievance against his or her agency. The bill has been referred to the House Oversight and Government Reform Committee. |
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| The AFL-CIO is hosting a nationwide series of training sessions and workshops in an effort to prepare undocumented workers for the Obama administration’s new deferred action programs. The three-day program of trainings, workshops and strategy sessions is being conducted ahead of the April 2 launch of the AFL-CIO’s “We Rise!” (Adelante!) initiative “to reach, mobilize and organize immigrant workers to build power on the job and in the community.” According to AFL-CIO, the initiative involves more than 200 representatives from 24 private and public sector unions in 25 states, plus the District of Columbia and Puerto Rico. According to the agenda, the training program’s objectives are: (1) build a shared understanding of what immigration implementation means for workers and the labor movement; (2) identify the strategies, tools and resources necessary for successful implementation; (3) generate a field plan for immigration implementation; (4) create a national network of engaged unions and community partners; and (5) launch the We Rise! initiative. |
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| The International Association of Machinists announced that its current vice president, Dora Cervantes, will become its first female general secretary-treasurer when Robert Roach Jr. retires, which could be as early as July. Cervantes already made history in April 2013 when members voted for her and Diane Babineaux to be the union’s first women to serve on IAM’s executive council. District 15 President and Directing Business Representative James Conigliaro will fill Cervantes’ vice president position. |
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| Opponents of Teamsters President James Hoffa are running against him on a slate called Teamsters United in the 2016 election. The opposition is backed by a reform caucus, Teamsters for a Democratic Union, which has been vigorously challenging Hoffa every five years. The opposition sites chief complaints as major concessions in national contracts that the union forced on unwilling members, including specific givebacks in some of these contracts, such as provisions which require members to pay an increasing amount of health care costs out-of-pocket, failure to address an increase in part-time work, technological surveillance, and harassment form supervisors. |
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April 16, 2015 |
| eLunch – Pension Plan De-risking: Legal Challenges and Opportunities |
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| April 30, 2015 |
| eLunch – NLRB New Employer Handbook Rules |
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| April 30, 2015 |
| Seminar – Scott Landau to Speak at Retirement Symposium |
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| March 11, 2015 |
| Supreme Court Holds That Federal Agencies Need Not Use Notice-and-Comment Procedures to Change Interpretive Rules |
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| March 23, 2015 |
| NLRB GC Releases Guidance on Employer Handbook Rules |
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| March 27, 2015 |
| Divided Supreme Court Revives Pregnancy Discrimination “Light Duty” Case |
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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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