Labor Relations Today

Labor Relations Today

Worker Brings ULP Charges Against Ford

Posted in NLRA, NLRB, Quick Hits, Unfair Labor Practices, Unions

Last week, an employee of Ford Motor Co. filed unfair labor practice charges against the automaker with the National Labor Relations Board in order to secure a partial refund of his union dues.  The employees at Ford’s plant in Dearborn, MI currently pay union dues each month to the United Auto Workers.  Todd Lemire, the employee bringing the charges, alleges that he has been forced to pay full union dues despite being a Beck objector.  The union reimburses him each month for any fees outside of “core union activities” such as collective bargaining and contract administration, but Lemire still believes that the method of reimbursement violates the National Labor Relations Act.

Michigan passed a “right to work” law in 2012, meaning that Lemire can completely opt out of being a UAW member when the UAW’s current collective bargaining agreement expires in 2015.  For the time being, however, Lemire is sick of having to “jump over hurdles” to refrain from affiliating with a union.  We will keep you posted as this case moves forward.


Board Orders Reinstatement and Backpay of Employee Due To ‘Zero Tolerance’ Inconsistency

Posted in NLRA, NLRB, Remedies, Unfair Labor Practices, Unions

This past Monday, the National Labor Relations Board reversed an Administrative Law Judge’s decision and held that Nichols Aluminum, LLC had unlawfully discharged an employee in violation of the National Labor Relations Act because he engaged in concerted and protected activity.  In Nichols Aluminum, LLC, 361 NLRB No. 22 (August 18, 2014), Nichols’ longtime employee Bruce Bandy participated in a labor strike.  When Bandy and the other strikers returned to the plant, Nichols’ managers made Bandy and the other workers sign a pledge promising not to strike again “over the same dispute.”  Bandy agreed not to strike again over the same dispute. 

About two weeks after Bandy returned to work, Nichols employee Braafhart (who had not participated in the strike) was driving a forklift in the plant.  Bandy saw Braafhart and made a “cut throat” gesture by sliding his hand across his neck with his thumb pointing upward.  Braafhart reported the gesture to management officials, who in turn suspended Bandy and ultimately discharged him for violating its “Zero Tolerance Policy” regarding workplace violence and threats.

In its decision reversing the ALJ and overturning Bandy’s discharge, the Board noted that it was undisputed that Nichols’ “Zero Tolerance Policy” had been around for years and that all of the plant employees, including Bandy, were well aware of it.  However, the record reflected that the ”Zero Tolerance Policy” had been applied inconsistently over the years, with employees generally being discharged for threats of major physical violence, while other less overt threats were treated more leniently.

Contrary to the ALJ, the Board reasoned that the General Counsel had met its Wright Line burden by establishing that 1) Bandy engaged in union activity by participating in a strike; 2) the employer knew about it; and 3) the employer harbored union animus because Nichols forced the returning strikers to sign a “no strike” pledge.  The Board leaned heavily on the “no strike” pledge in inferring that Nichols harbored union animus.  The pledge, the Board reasoned, “conditioned the strikers’ return to work on their promise to refrain from lawful protected activity.”  Accordingly, the GC satisfied his burden of demonstrating union animus. 

Because the GC met its initial burden under Wright Line, Nichols had to show that it would have discharged Bandy regardless of his participation in the strike.  The Board held that Nichols had failed to meet this burden because of its inconsistent application of its “Zero Tolerance Policy.”  Since Nichols did not consistently terminate employees for violating the policy, the Board could not find that Nichols’ discharge of Bandy ”conformed to established disciplinary practice.”  Accordingly, the Board found that Nichols violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act by discharging Bandy for participating in a labor strike, despite the fact that Bandy threatened an employee with the “cut throat” gesture.  Bandy was awarded full backpay, as well as interest, and a payment to compensate him for any tax consequences suffered from receiving a lump sum payment.

In dissent, Member Johnson opined that the Board was substituting its own ideas of business management for those of the employer.  Member Johnson also agreed with the ALJ that the GC failed to meet his initial Wright Line burden that Nichols discharged Bandy because of union animus, particularly because there was ”no apparent connection between the no-strike pledge and Bandy’s discharge.”  Bandy, Member Johnson reasoned, was not discharged for striking.  Rather, he was discharged for making threats against a co-worker. 

This decision provides another example of the current Board’s pro-employee bent.  Accordingly, employers need to be particularly careful to consistently apply workplace rules and standards.  Failing to do so could cause a completely reasonable discharge to turn into an unfair labor practice charge.

Board Circles Back To Ruling Nixed By Noel Canning

Posted in NLRA, NLRB, Quick Hits, Remedies, Unfair Labor Practices

Last week, the National Labor Relations Board circled back to a decision that was invalidated by the Supreme Court’s blockbuster Noel Canning decision.  As the reader may recall, Noel Canning determined that President Obama’s recess appointments to the National Labor Relations Board did not pass Constitutional muster.  Accordingly, the decisions issued by the improperly-constituted Board were wiped out and have to be reissued.

The Board decided the case at issue in March of 2013, ruling that a potato chip maker had violated the National Labor Relations Act by unilaterally changing its employees’ health benefits.  The current Board reaffirmed the recess-appointed Board’s ruling in a very short decision:

“In view of the decision of the Supreme Court in NLRB v. Noel Canning … we have considered de novo the judge’s decision and the record in light of the exceptions and briefs. We have also considered the now-vacated decision and order, and we agree with the rationale,” the board said. 

It remains to be seen whether the current Board will continue to “rubber stamp” the recess-appointed Board’s decisions.  We here at @LRToday will be watching this process closely, so stay tuned.

Parties Propose Joint Order To Resolve O’Bannon Pay Issue

Posted in Federal Court Litigation, Negotiations, Quick Hits, Remedies

Late last week, the parties to the now-famous Ed O’Bannon case out in California submitted a joint proposed Order to U.S. District Judge Claudia Wilken regarding when the court’s injunction prohibiting certain NCAA pay practices should kick in.  The reader may recall that Judge Wilken ruled in favor of a group of student athletes that the NCAA’s rule banning almost all forms of compensation to student athletes violated federal antitrust laws.  While the ruling dealt a huge blow to the NCAA’s current practices, it was also unclear when the injunction was set to begin.  Accordingly, the parties came together and proposed that the injunction will cover athletes playing in the 2016-17 season and beyond.

More on this case can be found here:

Teachers Unions Won’t Endorse Gov. Cuomo

Posted in Quick Hits, State/Local Issues, Unions

The New York State United Teachers Union (the union) announced yesterday that it will not be endorsing New York Governor Andrew Cuomo’s re-election campaign.  This is the second time in the last four years where the union has refused to endorse the Governor.

The union, which is composed of approximately 600,000 members, has butted heads with the Governor before, particularly over his plans for a new teacher-evaluation system and his championing of charter schools.

While the union will not be endorsing the Governor, they are not staying completely out of politics.  They are still backing Comptroller Tom DiNapoli and Attorney General Eric Schneiderman, who are both running for re-election as well.

More on this story can be found here:

Players Seek Clarity In O’Bannon Ruling

Posted in Federal Court Litigation, Quick Hits, Remedies

This past Tuesday, student athletes who will be directly affected by the now-famous O’Bannon case out of California have asked the presiding judge to specify that the decision will apply to both current and incoming students when an injunction barring the NCAA from prohibiting student athlete compensation kicks in next year.  In the case, the court ruled that the NCAA cannot prohibit student athletes from seeking certain forms of outside compensation.  But, the ruling is currently unclear as to whether the injunction will protect current students as well as incoming freshmen.

“That exclusion of thousands of current student-athletes (operating under one-year renewable scholarships or multi-year scholarships) is plainly inconsistent with the court’s injunction, which twice identifies the ‘licensing or use of prospective, current, or former’ student-athlete [names, images or likenesses], as even the NCAA acknowledges,” the plaintiffs wrote. “And it could lead to inadvertent disparities among teammates, despite the court’s repeated emphasis on equal sharing among student-athletes.”

As a result of last Friday’s holding, the NCAA can no longer prohibit athletes from being paid for the use of their names, images, or likenesses.  We will be watching this case closely, so stay tuned for any updates.

Co. Sues Board For Exceeding Authority

Posted in Federal Court Litigation, NLRA, NLRB, Quick Hits, Unfair Labor Practices, Unions

Sanderson Farms Inc. filed a complaint in federal district court in Mississippi against the National Labor Relations Board on Monday, alleging that the Board exceeded its authority by continuing to pursue unfair labor practice charges against Sanderson even though the charging party withdrew them.  Local 693 of the Laborers International Union of North America AFL-CIO (LIUNA) filed unfair labor practice charges against Sanderson between 2011 and 2013, but attempted to withdraw the charges earlier this year.  The Complaint alleges that despite LIUNA’s request to withdraw the charges, the NLRB has continued its investigation.

“The NLRB is prosecuting these charges without the consent and, until recently, the knowledge of seven of the employees and former employees named in the charges, without a justiciable claim for another former employee named in the charges and contrary to Local 693’s request to withdraw its charges,” the complaint says. “The NLRB is prosecuting these charges and has violated its duty of neutrality by attempting to convince Local 693 to maintain the charges.”

The Complaint lists the Board and its regional director of Region 15 as defendants in the case.  We will keep you posted on the Board’s response.

Third Circuit Will Revisit Becker Ruling

Posted in Federal Court Litigation, NLRA, NLRB, Quick Hits

Yesterday, the Third Circuit Court of Appeals granted the National Labor Relations Board’s request for a panel rehearing of its 2013 decision that determined that Member Craig Becker was improperly recess-appointed by the President.  The case has sat on the court’s docket for quite some time because the issue was tabled pending the U.S. Supreme Court’s Noel Canning decision. 

The Noel Canning ruling affirmed the D.C. Circuit’s holding that the President’s January 2012 recess appointments were Constitutionally unsound.  However, the Supreme Court narrowed the D.C. Circuit’s ruling and held that intra-session and inter-session recesses could be appropriate in certain circumstances.  Accordingly, the Board immediately ran back to the Third Circuit and asked for a rehearing on whether Member Becker’s appointment was valid in light of Noel Canning.

If the Third Circuit reverses itself and finds Member Becker’s appointment was Constitutionally sound, it will also in all likelihood determine that a 2013 Bargaining Order issued by the Board to New Vista Nursing and Rehabilitation was appropriate.  The Bargaining Order was nixed by the Court because Member Becker was one of the three Board members who signed off on the decision.

We will be following this case as it moves through rehearing at the Third Circuit.  Stay tuned.

New Vista, NLRB Square Off In 3d Circuit

Posted in Federal Court Litigation, NLRA, NLRB, Quick Hits, Unfair Labor Practices, Unions

New Vista Nursing and Rehabilitation LC filed an Answer to a National Labor Relations Board brief last week in the Third Circuit Court of Appeals, arguing that the court should decline the Board’s invitation to revisit a previous ruling denying the NLRB’s bargaining order. 

The current dispute before the court stems from a July 2013 rehearing request from the NLRB after the court struck down an August 2011 bargaining order because the court determined that Member Craig Becker’s recess appointment was unconstitutional.  The court tabled the rehearing petition while awaiting the outcome of the Noel Canning decision.  Based on the Supreme Court’s ruling, the Board is now arguing that Member Becker’s appointment passes Constitutional muster because it was made during a 17 day recess. 

It remains to be seen how the Circuits will interpret the Supreme Court’s recess-appointment guidance.  Accordingly, we will be watching this case and others like it very closely.  Stay tuned. 


LaVerne Adjuncts Pull Election Petition

Posted in NLRA, NLRB, Quick Hits, Representation Elections, Unfair Labor Practices, Unions

Earlier this week, union organizers working with adjunct professors at LaVerne University in California made the unusual move to withdraw their petition for a representation election.  The adjuncts actually held an election, which was supervised by the National Labor Relations Board in February of this year.  However, the votes were initially impounded and have yet to be counted because the Service Employees International Union (SEIU) filed unfair labor practices against the university.  Those charges were dismissed a little over a week ago.

In an email, a university spokesperson expressed the school’s disappointment that the votes would not be counted:

LaVerne had “consistently stressed the importance of counting the ballots so that our adjuncts’ voices can be heard. Unfortunately, because of the union’s efforts, that will never occur. In deciding to withdraw, we can only assume that the union believed that it would lose the election if the ballots were counted.”

A spokesperson for the union stated that the adjuncts would likely file another election down the road.  For now though, adjunct faculty at LaVerne seem to have shunned the growing trend of non-tenured faculty organization.