Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

D.C. Circuit Hears that Board Is Playing By Its Own Rules: Ben James at Law360 ($$) writes that last Friday, several parties filed a joint brief in the D.C. Circuit, arguing that the National Labor Relations Board is acting in direct contravention of the Circuit's January Noel Canning ruling. Santa Fe Tortilla, Encino Hospital, and Jeannette Geary urged the court in their brief to halt all Board activities until the NLRB has a quorum of members. Only then, the brief posits, can the Board appropriately assert its jurisdiction.

“After Noel Canning’s authoritative determination, Petitioners are justified in seeking to prevent a Board with no constitutional power from acting to their detriment. This Court has the power and duty to protect its own jurisdiction,” the joint brief said.

Neither side could immediately be reached for comment. However, this is certainly not the last challenge we will see to the Board's authority to act. These cases will be coming thick and fast until the Supreme Court has the opportunity to step in and resolve the current quagmire that has enveloped the Board. We will certainly keep you posted.

AZ Cab Drivers Looking to Unionize: The Arizona Daily Star reports that cab drivers in the Tucson area have filed a petition with the National Labor Relations Board in order to vote on whether the group desires to be represented for the purposes of collective bargaining. The cab drivers are being organized by the Tucson Hacks Association, who filed the petition on behalf of the cab drivers on June 11, 2013. A hearing on whether the drivers are actually employees or independent contractors is set for Tuesday. If the drivers are found not to be employees, they will not be able to hold a certification vote. We will keep you posted on the results of next week's hearing.

PA Teachers Ready to Strike: Bethany Hofstetter of the Tribune-Review reports that teachers in the Shaler, Pennsylvania area have stated that they will go on strike if a deal regarding a new contract cannot be reached with school district officials over the summer break. The strike notice was delivered by the Shaler Area Education Association (SAEA) and is scheduled to begin on September 3, 2013, the first day of the school year.

SAEA teachers have been working under a contract that expired in August of 2011. If the teachers do actually strike, the two sides will be forced to enter into interest arbitration, whereby a disinterested panel will essentially cobble together a contract for the parties. We will keep you posted as the negotiations progress.

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WI High Court Takes Up Union Bargaining Row: Sindhu Sundar of Law360 ($$) reports that last Friday, the Wisconsin Supreme Court agreed to hear a challenge to the state's law restricting public-sector collective bargaining. Last April, a Wisconsin appellate court had ruled that while public-sector employees do not have a constitutional right to organize collectively, they do have a right to not be treated differently from other employees. In its April ruling, the appeals court pleaded with the Supreme Court to pick up the issue.

“With respect to the public employee collective bargaining rights issue in this appeal, it is hard to imagine a dispute with greater statewide effect or with a greater need for a final resolution by the supreme court,” the state appeals court had said in its April 25 decision. “Although the parties do not address the topic, news accounts suggest that several municipal employers are engaged in legal disputes relating to this topic, and many more are left in limbo wondering whether they are better off engaging in some type of tentative bargaining or refusing to engage with employee representatives.”

Neither party immediately responded to requests for comment Friday. We will be following this matter closely as it moves toward briefing, oral argument, and a final decision from the Wisconsin Supreme Court and will certainly keep you posted.

NBAPA Will Wait to Replace Union Head Until Finals are Over: ESPN.com reports that the NBA Players Association (NBAPA) is in no rush to replace its recently ousted Union head, Billy Hunter. Hunter was voted out in February after a lengthy internal investigation revealed questionable business practices and probable conflicts of interest in various business transactions. An NBAPA spokesman suggested that the nine-member Players Association executive committee will seek player input before reaching out to a search firm. We will keep you updated as the process moves forward.

Mediator Called Upon to Help Kickstart Stalled BART Negotiations: WNYC.com reports that representatives of the Bay Area Rapid Transit Authority (BART) have asked a federal mediator to step into their labor dispute in order to avert a possible labor strike. BART management must negotiate a new contract with five separate labor unions before the current contract expires on June 30, or labor unrest could ensue. The unions have suggested that they will not back down from a confrontation, making the mediator's job that much more critical. We will keep you updated as to any progress in the currently-stalled talks.

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Earlier today, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court decision invalidating the National Labor Relations Board's August 2011 rule which would require most private employers to post notices in the workplace explaining employee rights under the National Labor Relations Act.  In so doing, the 4th Circuit joins the D.C. Circuit which had earlier struck down the rule.  Today's decision in Chamber of Commerce et al. v. National Labor Relations Board et al., No. 12-1757 (4th Cir. June 14, 2013), however, went further than the earlier decisions, asserting express limitations on the authority of the Board.

The rule, announced by the Board two years ago, required employers to

post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures...

Failure to post the notice would be an unfair labor practice under Section 8(a)(1) of the NLRA. The Board also intended failure to post the notice to the toll the six-month statute of limitations for unfair labor practice charges.  Shortly after the rule was promulgated, employer groups filed suit challenging it, and the Board postponed implementation. In March 2012, the D.C. District Court struck down certain elements of the rule, but held that the NLRB did have the authority to require private-sector employers to post these notices. Weeks later, the South Carolina District Court ruled that the Board did not have the authority to issue the notice-posting rule.  Earlier this year, the D.C. appeals court vacated the rule, finding it violated employers' free speech under Section 8(c) of the National Labor Relations Act, and violated the Act's limitations period in Section 10(b).

In today's decision, the Court did not address those arguments, instead simply holding that Congress never intended to allow this kind of proactive rulemaking by the Board:

...the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request. Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition.

The Court noted that a number of other federal labor statutes compel posting of employee notices like the Board tried to implement here. The critical distinction, however, is that these statutes -- including the Railway Labor Act, Title VII of the Civil Rights Act of 1964, the Occupational Health and Safety Act, Americans with Disabilities Act, and Family and Medical Leave Act, among others -- contain explicit statutory provisions allowing therefor.

Given the current political controversy swirling about the Board, and its current status and composition, it is questionable whether any official action will be taken with respect to the rule any time soon.  Unless we hear otherwise, employers should presume, at the very least, the Board's self-imposed stay of implementation will remain in effect.

More coverage and commentary:

• "Pro-Union Poster Rule Rejected by Second Appeals Court" -- Bloomberg BusinessWeek
• "Fourth Circuit Strikes NLRB Poster Rule" -- BLT: Blog of Legal Times
• National Chamber Litigation Center (NCLC) case page

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House GOP Looking to Revise NLRA: Ben James of Law360 ($$) writes that Republicans in the U.S. House of Representatives have introduced two measures that would effectively amend the National Labor Relations Act. The proposed pieces of legislation, referred to as HR 2346 and HR 2347, would protect workers' rights to a secret ballot and would also nix a recent Board ruling that the GOP says allows for "micro-unions." 

“The last thing workers need is special interests and government bureaucrats advancing policies that create division in workplaces and undermine their fundamental freedoms,” said House Education and the Workforce Committee Chairman John Kline, R-Minn. “The legislation introduced today will protect workers’ right to a secret-ballot election and end job-destroying micro-unions.

Democrats ripped the proposed measures, saying that they were blatant assaults on union rights. In a short statement, a Democratic spokesperson opined that the measures have no chance of becoming law. We will be watching this legislation closely and will certainly keep you up to date.

Employees Reject Pay-Cut; Layoffs On the Horizon: Emily Previti of The Patriot News reports that union workers in Harrisburg, PA have rejected a 5% pay cut, setting the stage for public-sector layoffs in the city. The employees, who are teachers in the Harrisburg school system, tentatively agreed to the deal last week. However, the measure failed in a vote. We will certainly keep you posted on any progress made in the Harrisburg negotiations.

Oakland City Workers Vote to Approve Strike: Matthew Artz of the Oakland Tribune reports that Oakland city workers, represented by the SEIU and the IFPTE, have voted in favor of a strike because negotiations with city officials over a new contracted have stagnated. The primary sticking points between the parties have been a lack of raises for public sector employees over several years, as well as how to allocate rising health care costs.

While a strike date has not been set, there are rumblings of a two-day labor stoppage around the July 4th holiday weekend. We here at @LRToday will keep you posted on any new developments.

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On June 10, 2013, the NLRB issued a decision, 359 NLRB No. 131, finding that the Communications Workers of America (CWA) and its Local 4309 violated Section 8(b)(1)(A) of the National Labor Relations Act by requiring employees to renew their Beck objections on an annual basis.  It found that although the CWA had a legitimate interest in addressing dissent amongst employees, it was not using annual renewal data to address that dissent.  Thus, the Union did not have a legitimate justification in requiring annual renewal.  The decision, however, leaves open the question of whether a union may require annual renewal of Beck objections if it is using the data to address employee dissent.

In Communications Workers of America v. Beck, 487 US 735 (1988), the Supreme Court determined that unions operating under an union security agreement could only charge objecting employees for collective bargaining and representational obligations and not the union's political or fraternal activities.  For years, unions had the practice of requiring employees seeking protection under Beck to renew their objections each year.  In L-3 Communications, 355 NLRB 1062 (2010), the Board determined the unions' practice of requiring annual renewals was unlawful unless it was de minimus or the union could establish a legitimate reason for requiring it.

The CWA asserted that it had a legitimate justification for its annual renewal requirement because it used the data to assess how its performance was perceived by the employees it represented.  The Board rejected this claim because the union did not present any evidence that it actually used the data for the reason asserted.  The Board, however, left open the possibility that this defense could be used if the annual renewal data is actually used for the stated purpose.  It noted that a union has a legitimate interest in addressing Beck-related dissent among employees, but did not clarify whether this legitimate interest is sufficient to justify an annual renewal requirement.

Although it appears Beck objectors have received a reprieve from often times onerous annual renewal requirements, the opposite may be true.  By leaving open the question of whether using annual renewal data to address dissent amongst employees is a legitimate justification, the Board has created an incentive for unions to test the waters.  The question that arises now is how long it will take before a case comes before the Board to resolve the issue and what the result will be.  Either way, the Board has issued another decision that seems to create more questions than it answered.

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Last week the National Labor Relations Board departed from its "longstanding policy...that representation elections should, as a general rule, be conducted manually"--i.e., in person at a voting booth--when it affirmed a Regional Director's decision to conduct five different elections by mail despite the employer's unopposed preference for manual balloting.

In Union Fire Association of Lower Merion, Case No. 04-RC-101825; Belmont Hills Fire Company, Case No. 04-RC-101803; Merion Fire Company of Ardmore, Case No. 04-RC-101798; Bryn Mawr Fire Company, Case No. 04-RC-101806; and Penn Wynne Overbrook Hills Fire Company, Case No. 04-RC-101812, the same union sought to represent the employees at five volunteer fire departments in Lower Merion Township, Pennsylvania, and simultaneously filed five petitions seeking an election. Each unit consisted of approximately four to seven employees.

During the representation hearings, the question was raised as to whether the election would be conducted by traditional manual balloting or by mail balloting. According to the NLRB's Casehandling Manual, the Board has recognized certain limited circumstances that might warrant deviation from the general rule favoring manual elections:

(a) where eligible voters are “scattered” because of their job duties over a wide geographic area

(b) where eligible voters are “scattered” in the sense that their work schedules vary significantly, so that they are not present at a common location at common times; and

(c) where there is a strike, a lockout or picketing in progress.

NLRB Casehandling Manual Sec. 11301.2. The manual goes on to state that:

If any of the foregoing situations exist, the Regional Director should also consider the desires of all the parties.... As a final factor, the Regional Director should also consider the efficient use of the Agency’s financial resources, because their efficient and economic use is reasonably a concern. However, mail ballot elections should not be directed based solely on budgetary concerns.

Id. (emphasis added).

It was undisputed in each case that neither exception "(a)" nor "(c)" applied. The only contested issue was whether exception "(b)" applied. For example, at one employer the unit was composed of three full time and four regular part-time firefighters. On each weekday evening, two of the full time firefighters worked, and the part-time employees were not regularly scheduled to work during the week, but were scheduled on Sundays. Moreover, during a fire call, all of the firefighters work at the scene of the fire. Even assuming that "(b)" did apply, however, each employer preferred a manual election, and the union did not oppose manual balloting or mail balloting.

Nevertheless, the Regional Director for Region 4, Dennis Walsh, who is a former Board Member, deviated from the Board's longstanding policy:  

I find that the Employer's proposal would be likely to inconvenience, and possibly disenfranchise, potential voters, as on each weekday evening only two of the seven members of the unit are scheduled to work at the facility, and the others would need to come to the facility on their own time. In addition, the entire unit would be unable to vote if there is a fire call during voting hours. Finally, the Region can conserve its limited resources by conducting mail ballot elections at all of the petitioned-for fire companies rather than conduct five manual elections at five locations. 

(emphasis added). Notably, despite the Regional Director's concerns about inconvenience and disenfranchisement, in a decision cited by the employers to both the Regional Director and the Board, Region 4 had previously ordered manual balloting in a case "involving virtually identical employers and units" where "there were no issues with balloting." On appeal, the Board affirmed the Regional Director's decision to conduct balloting by mail in each case, finding that the Regional Director did not abuse his discretion.

These decisions may be only a byproduct of the unique circumstances presented by the five simultaneously-filed petitions that would require manual balloting on the same days and times. However, where the NLRB's budget and workforce is growing despite a reduction in cases, the purported need to conserve the Region's resources seems less compelling to justify balloting by mail, especially when there is an uncontested preference for manual balloting. Accordingly, these decisions raise the question as to whether there may be a policy shift to allow more deviations from the Board's longstanding preference for manual balloting. 

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UMWA Accuses Patriot Coal of Walking Out of Labor Talks: Maria Chutchian of Law360 ($$) reports that yesterday, representatives of the United Mine Workers of America (UMWA) accused Patriot Coal of walking away from contract talks. Patriot quickly denied the allegations, referring to them as inaccurate. The talks have come as a result of a court ruling last month allowing the company to slash workers' health-care and retirement pension benefits as Patriot moves through bankruptcy.

In a follow-up statement, Patriot said that it had offered the union millions of dollars in health care and wage increases. However, implementing the major changes advocated by the UMWA would end up costing Patriot more than $40million per year. The statement further warned that a strike now would likely lead to liquidation instead of a reorganization.

This fight is just heating up and further mud-slinging is to be expected as Patriot teeters on the edge of a shutdown. We will certainly be watching this story and will update you with any developments.

Board ALJ Orders Hospital Back to Negotiating Table: Debbie Ramsay of the Fallbrook Village News writes that on Tuesday, a National Labor Relations Board Administrative Law Judge (ALJ) ordered Fallbrook Hospital back to the negotiating table. In issuing the 10(j) injunction, the ALJ ruled that Fallbrook would either have to consider proposals from the California Nurses Association, or would have to come up with its own collective bargaining agreement terms that would then be presented to the hospital's nurses.

In addition to forcing Fallbrook to negotiate with the nurses' union, the ALJ listed out several terms that must be discussed between the parties. Those include negotiating over the terminations of two employees, who were purportedly terminated for poor performance.

Mass. Nurses Ass'n Ratifies Labor Pacts: Robert Weisman of the Boston Globe reports that nurses at Quincy Hospital and the UMass Memorial Medical Center have both ratified labor pacts with hospital management. Both sets of nurses were represented in negotiations by the Massachusetts Nurses Association (MNA).

Nurses at Quincy engaged in a one-day strike in early April in order to put pressure on the contract talks, while UMass nurses had also recently threatened to strike. Terms of the agreements were not released, other than both will last for three years.

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DC Circuit Hears Board Fatally "Tainted": Ben James of Law360 ($$) writes that attorneys for Santa Fe Tortilla Co. recently argued that the National Labor Relations Board's refusal to comply with D.C. Circuit law has fatally "tainted" its ability to seek an injunction against the chip and tortilla company. In contrast, the Board argued that it should still be allowed to issue injunctions so that its ability to decide cases would not be negatively affected.

“The NLRB's argument in this opposition and throughout this entire proceeding is fatally tainted by its continued disobedience of the rule of law in this Circuit. This Court clearly held that the NLRB does not have a Constitutional quorum and, thus, the NLRB may not legally act,” said Monday's reply filing.

In essence, Santa Fe Tortilla is arguing that the D.C. Circuit's Noel Canning ruling should preclude the Board's ability to seek and issue injunctions under section 10(j) of the National Labor Relations Act. With the Board already in a state of flux, a D.C. Circuit ruling invalidating the Board's ability to issue injunctions would effectively neuter its enforcement capabilities until the Supreme Court has the opportunity to pass on the issue. We have been watching all issues related to the Board's ability to act very closely and will certainly keep you up to date on any new developments.

Board Seeking Sanctions Against Newspaper In Contravention of D.C. Circuit Order: Bill McMorris of the Washington Free Beacon writes that the National Labor Relations Board is pursuing sanctions against the Santa Barbara Free Press, even though the D.C. Circuit has recently ruled that such sanctions would threaten the paper's First Amendment rights. The Board has ordered the newspaper to reimburse three workers who were ostensibly fired for biased reporting. However, the D.C. Circuit held in December of 2012 that the paper was within its First Amendment rights to terminate the employees. The court explained its reasoning at the time as follows:

“The First Amendment affords a publisher—not a reporter—absolute authority to shape a newspaper’s content,” the appeals court ruled [emphasis theirs]. “‘Journalistic integrity,’ as conceived by the board and the reporters, requires a publisher’s cession of some of its editorial control, the First Amendment precludes government coercion in its name.”

Neither a Board nor a Free Press spokesperson could be reached for comment at the time of this story's publishing.

St. Louis Transit Workers Ready to Strike: KMOV St. Louis reports that yesterday, metro workers in St. Louis voted to authorize a strike after contract talks between employees and management officials broke down in a mediation session. The employees, represented by the Amalgamated Transit Union (ATU), have been working without a contract since January of 2011. The major sticking points between the parties involve pay increases, as well as changes to employee pension and benefit plans.

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 Board Holds That PLU Faculty Can Unionize: Gabriel Spitzer of NPR reports that the National Labor Relations Board recently ruled that adjunct faculty at Pacific Lutheran University should be allowed to form a union. The Board's Northwest Region found that PLU faculty should be allowed to vote on unionization because PLU is not technically a religious institution since neither students nor faculty are subject to religious requirements. 

A PLU spokesman revealed that an appeal of the Region's decision was already in the works. Furthermore, the whole decision could get nixed because of the uncertainty surrounding the validity of the Board's decision-making in light of January's Noel Canning decision. We will certainly keep you posted as this matter moves forward. 

Labor Unions Pushing Hard for Immigration Reform: Kevin Liptak of CNN writes that the Service Employees International Union (SEIU) has purchased more than $1million in advertisements designed to help push Congress towards comprehensive immigration reform. The ads will air throughout the month of June. 

Initially, labor unions such as the SEIU were fighting tooth and nail with business organizations such as the Chamber of Commerce over the terms of the reform measures. However, there is a glimmer of hope that a bill could get passed now that the Chamber and Union leaders have reached an agreement over guest worker programs. We have been watching this legislation closely and will certainly keep you posted. 

SEIU Janitors Strike at Minneapolis Target: Dave Jamieson of the Huffington Post reports that contract janitors at Target stores in Minneapolis have voted to go on a two-day workers' strike. The striking janitors are primarily concerned with what they believe are substandard wages, but are also ostensibly protesting the termination of several employees over the last couple of months. A Target spokesman declined to comment, other than to state that Target does not employ the janitors. 

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Today the Supreme Court denied to review an appeal in Ralphs Grocery Company v. United Food & Commercial Workers, Case No. 12-1162, challenging the constitutionality of two California laws that give organized labor the right to picket on the private property of a targeted business despite the property owner's objections.

The two state laws involved were the Moscone Act (Cal. Code Civ. Proc. section 527.3) and Labor Code section 1138.1. The Moscone Act provides that certain labor activities, such as peaceful picketing and communications regarding a labor dispute, are legal where "any person may lawfully be," and thus cannot be enjoined. Meanwhile, Labor Code section 1138.1 prohibits a court from issuing an injunction during a labor dispute unless certain requirements are met, such as evidence establishing that “unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained,” and a court finding that the police are “unable or unwilling to furnish adequate protection.”

In December 2012, the California Supreme Court issued a decision upholding the two state laws over Ralphs Grocery's constitutional challenge:

the supermarket's privately owned entrance area is not a public forum under the California Constitution's liberty of speech provision. For this reason, a union's picketing activities in such a location do not have state constitutional protection. Those picketing activities do have statutory protection, however, under the Moscone Act and section 1138.1. We do not agree with the Court of Appeal that the Moscone Act and section 1138.1, which are components of a state statutory system for regulating labor relations, and which are modeled on federal law, run afoul of the federal constitutional prohibition on content discrimination in speech regulations. On this basis, we reverse the Court of Appeal's judgment and remand the matter for further proceedings.

In its petition to the U.S. Supreme Court, Ralphs Grocery argued that the two California laws were unconstitutional because they force property owners to open their private property to the expressive activities of a union while permitting property owners the right to exclude all other kinds of expressive activities (political, religious, etc.). As such, Ralphs claimed that the statutes violated the U.S. Constitution’s First and Fourteenth Amendments as an improper content-based regulation. 

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Unions concerned over potential negative impact of Affordable Care Act:  Pat Loeb of CBS-Philly  reports that Unions are expressing growing concern over provisions of the Affordable Care Act that may negatively impact union members that participate in the union-funded healthcare plans.  According to Loeb, the Affordable Care Act required employers to provide health insurance for all full-time works.  If they fail to do so, they must pay a penalty.  Employees who do not receive employer-provided health insurance may participate in exchanges, with low-wage workers eligible for premium subsidies.  To the frustration of union officials, low-wage workers participating in union-funded plans are not eligible for the same subsidies.  Wendell Young of the UFCW exerts,

It’s excluding members like our (members) from qualifying for subsidies that they would otherwise be qualified for.

Young is one of many union officials pressing for changes in the law.

Unions seek staffing increases to improve New York City's 911 dispatch system:  Erin Durkin of New York Daily News writes that the New York City Council has scheduled a hearing to address concerns about response delays after the installation of a new $88 million computer-aided dispatch system.  The hearing was scheduled in response to union claims that understaffing on the new system was causing the unnecessary delays considering how busy 911 call centers can become.  Central to the argument that the delays must be addressed is the death of the child who may have survived but for system delays. 

Internal union dispute may impact contract negotiations with Southwest:  Ted Reed at Philly.com reports that Local 556 of the Transport Workers Union is facing some internal conflict that may affect, at least initially, negotiations with Southwest regarding a contract covering approximately 11,000 flight attendants.  The conflict stems from the removal of Stacy Martin as president of the local after he was elected to replace long-time president Thom McDaniel.

Martin asserts that he was removed as president due to internal politics arising from divided loyalties amongst members between him and the candidate he defeated.  Those who sought his removal blamed it on Martin's erratic management style.  Two of Martin's allies were also removed from union leadership positions.  Martin asserts that he will appeal the removal decision to the Union's international executive council and may also take legal action.

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NLRB Judge Shoots Down Red Cross' Confidentiality Rule: Ben James at Law360 ($$) writes that this past Tuesday, a National Labor Relations Board Administrative Law Judge held that the American Red Cross had violated federal labor law by enforcing a policy barring the disclosure of confidential company information. Confidential information, in turn, was found to include information concerning "personnel," which the ALJ held could cover wages, benefits, and terms and conditions of employment.

“By defining confidential information as including information regarding 'personnel' and 'employees' the CIIPA would be reasonably understood by employees to prohibit the disclosure of information including wages and terms of conditions of employment to other employees or to nonemployees, such as union representatives,” Administrative Law Judge Mark Carissimi said in his decision Tuesday, concluding that the confidentiality provision of the agreement violated the NLRA.

Neither party responded to a request for comment. This case will probably be appealed to the full Board, which is to be expected in light of the recent turmoil surrounding the NLRB's validity. We will certainly keep you posted as to any updates.

Precision CastParts Employees Set for Union Vote: CBS affiliate KTVL reports that more than 2,000 employees at Precision CastParts in Portland, Oregon will soon vote on whether to be represented by a International Association of Machinists and Aerospace Workers (IAMAW) for the purpose of collective bargaining and representation. The election, to be supervised by the National Labor Relations Board, will begin today and conclude tomorrow. Management officials have not commented publicly on the vote, but have expressed private concerns over the necessity of having a union on campus. We will keep you posted as the votes are tallied.

Baseball Players' Union Urges Caution in Steroid Case: Steve Eder of the New York Times writes
that the Major League Baseball Players' Association has sounded a note of caution as to whether to jump to conclusions over recent allegations that some of its stars have continued to use steroids and over performance-enhancing drugs. The union has been in regular contact with the Commissioner's office regarding its investigation into a clinic that purportedly gave PEDs to several high-profile MLB players.

The Players' Association has stated that they will represent the athletes in any disciplinary proceedings once a full and fair investigation has taken place. If and when the Commissioner doles out his punishment, those fines or suspensions can be appealed to an arbitrator under the parties' current collective-bargaining agreement. We will certainly keep you posted as the matter moves toward a resolution.

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Board ALJ Nixes Mandatory Arbitration Policy: Abigail Rubenstein of Law360 ($$) writes that a National Labor Relations Board Administrative Law Judge (ALJ) ruled recently that MasTec's mandatory arbitration policy ran afoul of the National Labor Relations Act, even though the policy allows MasTec's employees to opt out should they so desire.

“The Act grants to employees the right to engage in protected concerted activities without interference by his/her employer,” Judge Bibliowitz's decision said. “As these rights are granted by the Act, an employer may not lawfully require its employees to affirmatively act (opt out, in writing, within 30 days of receipt of the Employee Handbook) in order to obtain or maintain these rights.”

The ALJ further noted that the employees who did opt out would not be able to act in concert with those who were still subject to the policy, which would violate the employees' section 7 right to act in concert for mutual aid and protection. Neither side immediately responded to a request for comment, but an appeal to the full Board is expected.

Charter School Teachers To Vote On Unionization: Jenna Ebersole of the Pocono Record reports that teachers at Pocono Mountain Charter School in Pennsylvania will cast their votes as to whether they wish to be represented by the Pennsylvania State Education Association for the purpose of collective bargaining and representation. The head of the PSEA said in a statement that Pocono's teachers have been working toward a vote since last fall, when they first contacted the Union about the possibility of joining.

Whether or not charter school teachers can unionize is a hot-button issue, with the National Labor Relations Board ruling only last fall that charter school teachers are private employees subject to the National Labor Relations Act. We will keep you posted as to the results of the upcoming vote.

NHL, Players' Union Negotiate Over Player Safety: Pat Leonard of the New York Daily News writes that the National Hockey League has been negotiating with the NHL Players Association for some time over various safety issues, including the mandatory use of a face shield. It is estimated that almost 3/4 of players already wear visors, so it is not expected to cause much friction once the policy is implemented. Further, players with at least 26 games' experience will be grandfathered through and will not be subject to the policy. We will keep you posted with any further NHL/NHLPA developments. 

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IUOE Looking to Nix IN's Right To Work Law: Abigail Rubenstein of Law360 ($$) writes that last Friday, attorneys for the International Union of Operating Engineers (IUOE) argued that the Seventh Circuit should overturn dismissal of its lawsuit attempting to invalidate Indiana's new Right to Work law. The attorneys' main argument was that Indiana's law, which prevents labor unions from mandatorily collecting union dues, is preempted by federal labor law.

“The Indiana Right to Work law burdens union members and the union itself by requiring them to bear the full cost  of representing 'free riders,' which in turn diverts union resources away from voluntary First Amendment activity,” the brief said.

Neither side commented after argument, but the Governor's office is confident that the law will be upheld based on the lower court's dismissal of the IUOE's suit. We will certainly be watching this matter closely and will keep you posted with any developments.

Board Files Host of ULPs Against NJ Hospital: Susan Livio of the New Jersey Star-Ledger reports
that the National Labor Relations Board has filed a litany of unfair labor practice charges against Meadowlands Hospital in New Jersey. Among the more serious charges are that the hospital laid off 50 workers without regard to seniority and unilaterally implemented several major terms and conditions of employment.

"This complaint is an important recognition that the owners of Meadowlands Hospital have repeatedly and deliberately violated the rights and working conditions of healthcare workers, and it has cost employees millions in lost wages, unpaid medical claims and retirement pay," [a spokesman for the employees said.]

Neither the hospital nor a Board spokesperson could be reached for comment on the story. We will keep you informed as this matter is investigated and moves toward a resolution.

Union Alleges CTA Violating Seniority Rules: John Hilkevitch of the Chicago Tribune reports that members of the Amalgamated Transit Union (ATU) have begun protesting against what they believe are contract violations being committed by the Chicago Transit Authority (CTA). In particular, ATU has alleged that CTA has refused to honor the seniority provisions in the newly-signed contract between the parties, causing customer service employees to lose their preferred hours in some instances. The protests just began yesterday and are expected to continue throughout the week.

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