2021 MIDWINTER MEETING ABA COMMITTEE ON THE DEVELOPMENT OF THE LAW UNDER THE NATIONAL LABOR RELATIONS ACT SIGNIFICANT ENFORCEMENT CASES OF 2020 ...
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2021 MIDWINTER MEETING
Ruth Burdick, Acting Deputy
Associate General Counsel
ABA COMMITTEE ON THE
Meredith Jason, Special Advisor DEVELOPMENT OF THE LAW
UNDER THE NATIONAL
to the Acting General Counsel
Appellate & Supreme Court LABOR RELATIONS ACT
Litigation Branch
National Labor Relations Board
Washington DC SIGNIFICANT
ENFORCEMENT CASES OF
2020
I n t e r n a t i o n a l U n i o n o f O p e r a t i n g E n g i n e e r s L o c a l 5 0 1 , A F L - C I O v. N L R B ,
9 4 9 F. 3 d 4 7 7 ( 9 t h C i r. 2 0 2 0 )
I S S U E : W h e t h e r t h e c a s i n o ’s s l o t t e c h n i c i a n s a r e g u a r d s u n d e r t h e N L R A
B AC K G R O U N D : B e l l a g i o a n d 2 0 1 8 D L L p a n e l
• Section 9(b)(3) of the Act:
1. The Board may not “decide that any unit is appropriate if it
includes, together with other employees, any individual employed
as a guard to enforce against employees and other persons rules
to protect property of the employer or to protect the safety of
persons on the employer’s premises.”
2. “[N]o labor organization shall be certified as the representative
of employees in a bargaining unit of guards if such organization
admits to membership, or is affiliated directly or indirectly with
an organization which admits to membership, employees other
GUARD ISSUE – than guards.”
Basic Principles • Intended to minimize the danger of divided loyalty that arises when
a guard is called upon to enforce rules against fellow union member.
• Board will find guard status if the guard functions are an essential
part of employees’ duties – that is, if an essential part of employees’
duties and responsibilities involve enforcement of employer’s rules;
not if minor/incidental part of employees’ overall responsibilities.
• Fact-specific determinations on a case-by-case basis.
• Guard status can be found even if employees do not wear a uniform,
carry a firearm, or make rounds.I n t e r n a t i o n a l U n i o n o f O p e r a t i n g E n g i n e e r L o c a l 5 0 1 , A F L - C I O v. N L R B ,
9 4 9 F. 3 d 4 7 7 ( 9 t h C i r. 2 0 2 0 )
• Local 501petitioned to represent GVR’s slot technicians (and, in related cases,
at several other employer-owned casinos); GVR argued that Local 501could
not represent the techs, because they are “guards” and Local 501 represents
other nonguard employees at the casinos.
• Slot techs responsibilities: install, repair, and maintain gaming machines;
investigate whether machine is operating properly; investigate “game loss”
reports; verify jackpots of +$100,000 (but managers authorizes payment); work
with state gaming agency agents; and, like all employees, must be alert for
evidence of money laundering and underage gambling or drinking. Separate
from security and surveillance departments.
• GVR argued that the slot techs are guards because a “core function” of their
duties is to “enforce rules against casino guests and other employees to protect
GVR’s property and assets,” including by “verifying jackpots against fraudulent
payouts.” GVR relied heavily on Bellagio, LLC v. NLRB, 863 F.3d 839 (D.C. Cir.
2017), claiming it was essentially determinative.
• The RD rejected the casinos arguments and certified the units; Board
(McFerran, Kaplan, Emanuel) denied review; landed in the Ninth Circuit on the
tech 8(a)(5).
• Detour – how did this case end up in the 9th Cir., rather than D.C.? The Union
created a circuit race.I nt e r n a t io na l U n io n o f O p e ra ting E n gin e e r s L o ca l 5 0 1 , A F L - C IO v. N L R B ,
9 4 9 F. 3 d 4 7 7 ( 9 t h C i r. 2 0 2 0) .
• The Ninth Circuit agreed with the Board and distinguished Bellagio:
• When carrying out core functions, slot techs are not responsible for any systems relied upon for surveillance or security
and did not have access to or “control access to” all sensitive areas of the casino; rather, “spent 90% of their time on the
gaming floor, primarily installing, maintaining, and repairing the machines.”
• Slot techs duties did not implicate “divided loyalty” concerns like surveillance techs in Bellagio; not required to “help spy on
fellow employees suspected of misconduct;” not involved in “sting” operations or in investigations of other employees; no
obligation to report employee misconduct beyond that of any other employee.
• Rejected GVR’s broad claim that slot tech are guards because they “enforce GVR’s rules and polices against GVR’s guests
and other employees in order to protect GVR’s property and assets.” Such a “distended interpretation of guard status
would swallow the definition outright.”
• Under GVR’s proffered interpretation, “we struggle to think of any casino employee who would not fit the bill . . . . Just as
slot technicians’ duties include reporting prohibited activity to security, the bartenders and dealers are to do the same.”
• “We decline to adopt an interpretation of the Act that would characterize virtually all employees working on the casino
floor as guards.”• Union’s forum shopping was successful
• GVR read Bellagio narrowly and confined it to the facts;
recognized cascading effect that a broad interpretation of
Section 9 and Bellagio would have on casino employees; several
GUARD related cases in D.C. Circuit involving other casinos owned by
same employer settled on the eve of oral argument, so the D.C.
ISSUE – did not have to revisit Bellagio in this context, but . . .
takeaways & • RadNet Management, Inc. v. NLRB – the first post-Bellagio
appellate court case in which an employer has argued that
what’s on Bellagio should be extended beyond casinos.
the horizon • Employer arguing that MRI techs at its six radiology centers are
guards.
• Pending in D.C. Circuit; argued on January 12, 2021
• Stay tuned . . .The Board’s “Unqualified Threat” Rule
and IBEW, Local 357
• Section 8(b)(4)(ii)(B) prohibits a union from coercing a “neutral” party who is not directly
involved in a labor dispute with the union.
• Board has long found unlawful “unqualified” union threats to picket worksites shared by
both a legitimately targeted, or “primary,” employer and neutral employers, i.e., threats
that do not clarify that picketing would avoid targeting the neutral employers as required
by Board law.
• Failure to clarify threat supports a finding that an object of the threat is to unlawfully
coerce the neutral employers within the meaning of Section 8(b)(4)(ii)(B).
• Rule has not been well received by the circuit courts – both the 9th and D.C. Circuits have
squarely rejected it.I B E W, L o c al 3 5 7 , 3 6 7 NL R B No. 6 1 ( 2 0 1 8)
( R i n g & K ap l an, Mc Fe rr an d i sse n t i ng)
• Dispute arose between Local 357 and the charging party employer, Convention
Technical Services, regarding the latter’s failure to pay area-standard wages and benefits
while performing electrical work for a show at the Las Vegas Convention Center.
• Threat to neutral indisputably unqualified; Board 8(b)(4)(ii)(B) violation
• Underlying rule is Congress’s deep concern with ensuring that neutral employers
remain free from entanglement in the labor disputes of others; Board must ensure that
neutral parties receive the broad protection Congress intended they should have from
‘pressures in controversies not their own.
• Broadly worded/unqualified notice is “inherently coercive” because it is ambiguous;
neutral employer would question why it was receiving notice given; “this question
would reasonably lead [neutral] to at least suspect, if not believe, that its business
would be targeted by the picketing.”
• Rule does not “presume that the union’s threat is a threat to picket in an unlawful
manner;” it rests on the conclusion that when a union chooses to send an ambiguous
threat to a neutral employer, it has the separate, unlawful object of coercing that
neutral recipient .
• Minimal burden placed on unions; rule does not require specific language or “legalese,”
as long as the union “make[s] clear in some manner that it will comply with legal
limitations on common situs picketing.”
• Rule “strikes the only balance that will adequately protect neutrals as intended by
Congress.”
• Now-Chairman McFerran dissented; urged consideration of facts as a whole, on a case-
by-case basis.I n t e rn at io na l B ro t he r ho o d o f E le ct r ica l
Wo r ke r s , L o c al 3 5 7 v. N L R B
• Union petitioned for review in the 9th Circuit
• Given the directly contrary circuit precedent, Board petitioned
for initial hearing en banc, arguing that in the earlier 9th Cir.
cases, the court did not have the benefit of the Board’s new,
more expansive rationale.
• We emphasized the deference owed the Board as the expert
agency tasked by Congress with interpreting and enforcing the
Act, as well as the important congressional policies embodied
in the Act, in our attempt to convince the court to agree to
hear the case en banc and to reconsider its cases rejecting
Board’s rule.
• Petition denied; conceded defeat
• Ball is back in the Board’s court . . .Pa c i fi c L u t h e ra n P a r t I I :
D u q u e s n e U n i v e r s i t y o f t h e H o l y S p i r i t v. N L R B ,
9 4 7 F. 3 d 8 2 4 ( D. C . C i r. 2 0 2 0 ) .
• ISSUE: What is the appropriate standard for the Board to apply when
determining whether to exercise jurisdiction over faculty members at self-
identified religious colleges and universities.
• Duquesne was lead case; Manhattan College and St. Xavier also appealed to D.C.
Circuit• Private Catholic university; unit of part-time adjunct faculty in
college of liberal arts sought representation; university claimed
exempt from Board’s jurisdiction because religiously affiliated.
• RD applied Board’s test set out in Pacific Lutheran University, 361
Background & NLRB 1404 (2014), which held that the Board will exercise
Board Proceedings jurisdiction over a petitioned-for unit of faculty unless the
university:
• (1) “holds itself out as providing a religious education
environment,” and
• (2) “holds out the petitioned-for faculty members as
performing a specific role in creating or maintaining the
school’s religious educational environment.”
• In Pacific Lutheran, Board recognized that jurisdictional issue
raised competing interests: (1) respect for the First
Amendment; and (2) effective implementation of Federal labor
policy.
• Also recognized that it must avoid the First Amendment
concerns identified in NLRB v. Catholic Bishop, 440 U.S. 490
(1979), which addressed risk of excessive government
entanglement with religion posed by Board exercising
jurisdiction over parochial-school teachers.
• But – because the ultimate consequence of declining jurisdiction
is to exclude otherwise-covered employees from the Act’s
protections, Pacific Lutheran placed emphasis on the petitioned-
for employees themselves and not on the university as a whole .Reckoning with
Univer sity of Great Falls v. NLRB, 278
F.3d 1335 (D.C . Cir. 2002)
• In Pacific Lutheran, Board had to come to terms with Great Falls, where D.C. Circuit rejected its prior test and set forth its
own standard.
• Great Falls held that the Board could not assert jurisdiction if the school:
(1) holds itself out as providing a religious educational environment;
(2) is organized as a nonprofit; and
(3) is affiliated with a recognized religious organization.
• Board explained that it adopted Great Falls in the first prong of Pacific Lutheran and that it would use the same “holding out”
standard articulated in Great Falls when examining the petitioned-for faculty in prong two. Did not fully adopt Great Falls
because it “overreached because it focuses solely on the nature of the institution, without considering whether the
petitioned-for faculty . . . act in support of the school’s religious mission.” Great Falls “goes too far in subordinating Section 7
rights and ignores federal labor policy.”
• RD found that Duquesne satisfied prong 1, but not prong 2. RD explained that “generalized statements” in publications and
materials regarding religious duties conveyed to “faculty” were insufficient; “a reasonable candidate for an adjunct teaching
position . . . would not conclude that any religious responsibilities were required.”
• Request for Review denied (Pearce and McFerran, Miscimarra dissenting); tech 8(a)(5), the Board (Kaplan, Pearce & Emanuel)
found the violation.• Denied enforcement (Judges Rogers & Griffith; Judge Pillard dissenting):
Pacific Lutheran is inconsistent with binding circuit precedent in Great
Falls.
• Described Great Falls as a “bright-line test;” if satisfied, Board must
decline jurisdiction and cannot “extend” the test to include an inquiry
into the particular faculty at issue; refused to examine roles played by
faculty at issue.
D. C . C i rc u i t
decision • Explained that Catholic Bishop had not differentiated between teachers
who played religious versus secular roles; likewise, Great Falls did not
hold that “the Board’s jurisdiction was affected by the religious or non-
Duquesne University religious roles played by the faculty members.”
o f t h e H o l y S p i r i t v.
NLRB, • Inquiry into the particular role faculty played would implicate First
Amendment concerns – Catholic Bishop said that “the Board may not
9 4 7 F. 3 d 8 2 4 determine whether various faculty members play sufficiently religious
( D. C . C i r. 2 0 2 0 ) . roles.”
• Rejected Board’s argument that utilizing the “holding out” standard for
prong 2 protected against such an improper inquiry.
• Rejected dissenting Judge Pillard’s argument that Great Falls did not
apply because the faculty at issue were adjuncts. In Pillard’s view,
second prong of Pacific Lutheran is consistent with Catholic Bishop,
because Board only considers how the university itself holds out the
role of the adjunct faculty.Duquesne: Interesting post-decision activity • Union petition for rehearing en banc; Board filed response in support • While petition pending, Board issued Bethany College, 369 NLRB No. 98 (2020), overruling Pacific Lutheran and adopting Great Falls; Board withdrew support for Union’s rehearing petition. • Court denied rehearing; Pillard concurred but (1) explained her disagreement with Great Falls, which in her view goes further than Catholic Bishop requires; (2) raised concerns about Catholic Bishop itself; and (3) explained that even Catholic Bishop does not preclude prong 2 of Pacific Lutheran. • Charging Parties petition for review in Bethany (which is a ulp case; not R case) • Union in Manhattan College filed a petition for initial hearing en banc arguing that Great Falls and Duquesne should be overruled, embracing Judge Pillard’s concurrence in denial of rehearing in Duquesne; Board opposed. • D.C. Circuit denied en banc petition in Manhattan College; Charging Parties withdrew petition in Bethany College. • Where we stand now: the Board and D.C. Circuit agree on the standard, but what will the new Board do? Judge Pillard lays out important Const. arguments that could be urged to the Board.
Boothwyn Fire Co. & Mediation • Mediation is an ever-increasing part of the agency’s appellate court enforcement work; every circuit court (but one) now has established a formal mediation program. • Each program works differently. Most circuits have their own mediators, but some, such as the D.C. Circuit, assign cases to local attorneys who volunteer to mediate cases. • Circuits also differ in how they select cases for mediation. Some require virtually every case to have at least one session; others select cases randomly or ones that they identify as good cases for their program; others circuits get input from the parties. • Participation is mandatory – if a case is selected for the mediation program, parties must participate in good faith (but, of course, that does not mean that they must resolve the matter). • About a third of our cases have go into formal mediation, and of those cases about two thirds get resolved in that manner. Generally, this happens without briefing or oral argument, though occasionally cases continue in mediation despite being briefed, and sometimes even after oral argument, and nevertheless are resolved though mediation. And every year we have a handful of cases that settle without going into formal court mediation. • Virtually any case can be resolved through mediation – with the one exception being technical 8a5s • Complex settlements • Partial settlements
Boothwyn Fire Co. No. 1,
3 6 3 N L R B N o. 1 9 1 ( 2 0 1 6 ) ( “ B o o t h w y n I ” ) .
• Boothwyn violated Act by threatening an employee with retaliation and, thereafter, warning
and then discharging him.
• Boothwyn petitioned for review in Third Circuit and Board cross-applied for enforcement.
• Board entered mediated settlement agreement with Boothwyn and discriminatee. Boothwyn
agreed to (1) post notice; (2) pay backpay; (3) remove from files any reference to
discipline/discharge; and (4) notify in writing of having done that and that discipline/discharge
will not be used against him.
• The discriminatee waived his right to reinstatement; and
• Boothwyn and discriminatee waived “their rights under Section 10(e) and (f) of the Act . . . to
contest the propriety of the Board’s Order, the findings of fact and conclusions of law . . . , or
any of the relief due as provided in this Agreement.”
• Standard waiver language included in our settlement agreements.
• After compliance, parties filed joint motion to dismiss; motion specifically requested
Boothwyn’s petition be dismissed “with prejudice” and Board’s cross app “without prejudice.”
• “Without prejudice” so that, if necessary, Board can re-file to enforce the “continuing
obligation” imposed on Boothwyn by the Board’s order.
• NLRB v. Mexia Textile Mills, 339 U.S. 563 (1950), stands for the proposition that because Board
orders impose a continuing obligation to cease and desist, Board can always resume
enforcement proceedings.
• In 2017, Third Circuit granted motion, dismissing petition with prejudice and cross application
without prejudice.Boothwyn II • About 2½ years later, the discriminatee filed a ULP charge, alleging that Boothwyn engaged in new 8(a)(1) misconduct and that the new misconduct demonstrated noncompliance with the settlement agreement. • Claimed that Boothwyn was referring to the discipline and discharge when talking to potential employers and, therefore, he could not get a new job. • In light of the new charge, the Regional Office requested enforcement of the 2016 Board Order; we filed a new application for enforcement in the Third Cir. • We promptly moved for summary enforcement of Board’s 2016 Order. • Again, cited Mexia Textile, as well as other precedent holding that Board orders impose a continuing obligation and that even full compliance with a Board order does not bar judicial enforcement or render enforcement proceedings moot • Motion granted; now have a court judgment
AdvancePierre Foods , Inc . v. NLRB, 966 F.3d 813 (D.C . Cir. 2020)
• Successful partial settlement – only 2 issues remained before D.C. Circuit.
• The only contested violation: the Board (reversing the ALJ) found that during UFCW,
Local 75’s organizing campaign, employer unlawfully solicited employees to withdraw their
union authorization cards.
• Judge found employer lawfully provided the information and did not provide unlawful
assistance or solicitation; rejected argument that other numerous ULPs created a
“perilous atmosphere,” which caused employer’s otherwise lawful conduct to be unlawful.
Distinguished Mohawk Industries, 334 NLRB 1170 (2001); there ULPs were of “much
greater scope and severity.”
• The Board (Pearce & McFerran, Emanuel dissenting) reversed, solicitation to revoke cards
violated 8(a)(1) because occurred contemporaneously with “serious violations that went
to the heart of the card-signing process and began immediately after the [employer]
learned of the Union’s organizing campaign.”
• The Board disagreed with ALJ’s distinguishing of Mohawk. Although the contemporaneous
violations there were different, those committed here were no less egregious, particularly
because the violations here all stemmed from the employer’s efforts to “squelch” the
Union’s campaign as soon as it began.
• D.C. Circuit (Judges Henderson, Wilkins & Katsas) enforced.
• The Court reiterated the clear holding of Mohawk: “An employer’s otherwise protected
speech can constitute unlawful coercion if it occurs within a perilous atmosphere created
by contemporaneous ULPs.”
• Court commented that ALJ, Board majority, and dissenting Member Emanuel all applied
Mohawk, yet all reached different conclusions about whether conduct created a “perilous
atmosphere;” even so, held that Board did not act arbitrarily in applying its precedent.• Lou’s Transport, Inc. v. NLRB, 945 F.3d 102 (6th Cir. 2019) – covered last year:
• Court fully enforced Board’s backpay award against a litany of challenges,
recognizing there will always be uncertainty and choices to be made, but so
long as “a reasonable mind could accept [the] evidence as adequate” and
Board did not act arbitrarily, court will not second guess it
• Upheld Board’s application of King Soopers, in which the Board treated
search-for-work and interim expenses like other losses suffered by
discriminatee
QUICK • In 2020, Sixth Circuit reaffirmed Lou’s in Challenge Manufacturing Co. v. NLRB, 815
UPDATES – F. App’x 33 (6th Cir. 2020).
Backpay • Re King Soopers: Rejected challenges to Board’s award of search-for-work
and interim expenses, without any offset against interim earnings; stating, in
awards & Lou’s the court found such remedies permissible and not in excess of Board’s
authority.
King Soopers • NLRB v. Lucky Cab Co., 818 F. App’x 638 (9th Cir. 2020). Approved subtracting of
meal-expense deductions from drivers’ gross interim earnings, even though
drivers had not been given free meals while working for Lucky. Also, upheld
principle that “a wrongfully discharged employee is expected to seek only new
employment that is substantially equivalent to the position lost.” They are “not
required to seek or retain a job that is more onerous.”
• Bottom line is the same as last year: courts appear unreceptive to nit-picking
over back pay.TRENDS IN COURT DECISIONS
RECEIVED IN 2020THIS YEAR: • There were no court decisions on Board authority this year. However, on our watchlist is NLRB v. Newark Electric Corp., et al., 2d Cir. No. 18-2784, the final case in court on the issue of General Counsel Griffin’s ratification of a complaint issued on the tenure of Acting General Counsel Solomon. • On the jurisdictional front, the D.C. Circuit decided one case on the line between NLRB and NMB jurisdiction: American Sales & Management Organization, LLC, d/b/a Eulen America v. NLRB, 799 F. App’x 1 (D.C. Cir. Jan. 27, 2020). • On the procedural front, the Second Circuit, in issuing Laborers’ Int'l Union of North America, Local Union No. 91 v. NLRB, 825 F. App’x 51 (2d Cir. Oct. 9, 2020), made an interesting course correction.
SUPERVISORY STATUS • The two decisions received on supervisory status this year were both issued by the Fifth Circuit. • One upheld the Board’s finding that electrical dispatchers were supervisors: Int’l Bhd. of Elec.Workers, AFL-CIO, CLC, Local Unions 605 and 985 v. NLRB, 973 F.3d 451 (5th Cir. Sep. 2, 2020). • The other, covering two related Board cases, reversed the Board’s findings of employee status, and held “supervisors” at a nuclear power facility were statutory supervisors: STP Nuclear Operating Co. v. NLRB, 975 F.3d 507 (5th Cir. Sep. 16, 2020).
REPRESENTATION CASES • Among the 9 decisions in test-of-certification cases, the Board’s bargaining orders withstood scrutiny in the Court of Appeals in 7 cases. • The Board’s strongest showing was in election-objection cases, prevailing in all 6 decided cases. • However, in the 3 unit-determination cases there were more mixed results. One case was enforced, one remanded, and in the third, enforcement was denied with no remand. • Some notes on substantive trends in this year’s representation cases.
THE WEINGARTEN RIGHT • A notable case in the “coercive acts” category was Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas v. NLRB, 961 F.3d 469 (D.C. Cir. June 12, 2020), denying and partially remanding 366 NLRB No. 110 (June 15, 2018), where the D.C. Circuit granted in part the petition for review filed by this operator of a hotel and casino in Las Vegas, Nevada, and remanded. • Among other issues, the divided panel held that an employee’s statement made to managers when he arrived for an investigatory interview was insufficient to trigger his Weingarten right. Upon arrival, he stated that he “called the Union three times [and] nobody showed up, I’m here without representation.” In the court’s view, his statement was not language reasonably calculated to apprise the employer that he was seeking such assistance.
DISCRIMINATION ON THE BASIS OF
UNION ACTIVITY
• A CASE OF INTEREST:
• In upholding the Board’s unlawful-discharge finding in Challenge Manufacturing
Company, LLC v. NLRB, 815 F. App’x 33 (6th Cir. June 9, 2020), the Sixth Circuit
commented extensively on aspects of the Board’s Wright Line test.
• Specifically, in rejecting the employer’s contentions, the Court stated that
Wright Line is inherently a causation test and no separate causal or nexis
element is needed, and that the General Counsel is not required to prove
directly that the ultimate decisionmaker acted with union animus toward the
discriminatee.
• Some notes on substantive trends in other discrimination cases.DISCRIMINATION AGAINST UNFAIR
LABOR PRACTICE STRIKERS
• Enforcing four separate Board orders in one decision, NLRB v. Alaris Health at
Castle Hill, et al., 811 F. App’x 782 (3d Cir. May 4, 2020), the Third Circuit held
that this nursing home operator violated Section 8(a)(3) and (1) by refusing to
immediately reinstate unfair-labor-practice strikers at four of its facilities.
• In rejecting the employer’s contentions, the Court agreed with the Board that
there was no support for its claim that staffing contracts it entered into for
certain temporary replacement workers provided a legitimate and substantial
business justification for its failure to immediately reinstate the ULP strikers.
• As the Court explained, “the substantial business justification exception to
immediately reinstating employees does not apply to unfair-labor-practice
strikes.”DUTY TO BARGAIN • DUES CHECK-OFF AFTER CONTRACT EXPIRATION: • In a pair of decisions, Local Joint Executive Board of Las Vegas v. NLRB, __F. App’x __ (9th Cir. Dec. 30, 2020), reviewing Valley Hospital Medical Center Inc., 368 NLRB No. 139), and Service Employees International Union, Local 1107 v. NLRB, 832 F. App’x 514 (9th Cir. Dec. 30, 2020), reviewing Valley Health System LLC, et al., 369 NLRB No. 16, the Ninth Circuit granted the petitions for review filed by the respective Unions and remanded. • Both cases involved the question whether an employer acts unlawfully by unilaterally ceasing to check off and remit union dues pursuant to a dues-checkoff provision in the parties’ expired collective-bargaining agreement. • This issue has a long history in the Ninth Circuit.
DUES CHECK-OFF AFTER CONTRACT
EXPIRATION, cont.
• In Valley Hospital Medical Center, 368 NLRB No. 139, the Board dismissed an
allegation that, after the parties’ contract expired, this healthcare facility had
violated the Act by unilaterally ceasing to check off and remit union dues
pursuant to a dues-checkoff provision in the parties’ expired collective-
bargaining agreement.
• Changing course in this case, the Board held that dues-checkoff arrangements
between an employer and a union are an exception to the general statutory
prohibition against unilateral changes.
• Then in Valley Hospital Medical Center, 368 NLRB No. 139, the Board applied
Valley Hospital to a similar allegation, and did so retroactively.DUES CHECK-OFF AFTER CONTRACT
EXPIRATION, cont.
• Explaining its remand, the Ninth Circuit held that the Board must “provide an
adequate explanation for its approach to dues checkoff by explicitly addressing
the precedents cited by the Union that appear to contradict the ‘contract-
creation’ rationale used in this case.”
• Details on the Board’s “contract-creation” rationale.
• Issuing a unique mandate, the Court ordered that the rule articulated by the
Board “may stand while it undertakes the process of supplementing its
reasoning,” and that the panel would retain jurisdiction over any subsequent
petition for review.TWO CIRCUITS DELIVER DIFFERING RESULTS ON THE BOARD’S MASTER SLACK ANALYSIS • The Fifth Circuit, enforcing in relevant part, upheld the Board’s determination that unfair labor practices tainted a decertification petition under Master Slack Corp., 271 NLRB 78 (1984), and that, as a result, the employer’s withdrawal of recognition violated Section 8(a)(5) and (1). See Denton County Electric Cooperative d/b/a Coserv Electric v. NLRB, 962 F.3d 161 (5th Cir. June 16, 2020), enforcing in part 366 NLRB No. 103 (June 12, 2018), • The Ninth Circuit agreed with the Board that, although the Employer promoted the employee during her signature-gathering effort, there was no evidence that it directly encouraged the petition, so the petition was untainted. See International Association of Machinists, District 751 v. NLRB, 822 F. App’x 585 (9th Cir. Aug. 6, 2020), affirming and enforcing AIM Aerospace Sumner, Inc., 367 NLRB No. 148 (June 6, 2019),
UNION UNFAIR LABOR PRACTICES • THE CHARGEABILITY TO NONMEMBER OBJECTORS OF UNION EXPENSES INCURRED IN LOBBYING: • In United Nurses and Allied Professionals v. NLRB, 975 F.3d 34 (1st Cir. Sep. 15, 2020), enforcing 367 NLRB No. 94 (Mar. 1, 2019), the First Circuit upheld the Board’s determination that the Union violated Section 8(B)(1)(A) of the Act by charging nonmember Beck objectors for expenses incurred for lobbying activities. • The Court also upheld the Board’s ruling that the Union violated the Act by failing to furnish the objectors with a letter from its auditor verifying the expenses reported as the basis for the Union’s agency fees.
SPECIAL REMEDIES • The Sixth Circuit upheld a number of the Board’s special remedies, including a notice-reading remedy with the added requirement that all supervisors and managers be in attendance, an extended three-year period of notice-posting, and a requirement that the notice be published in two publications. See Ozburn-Hessey Logistics, LLC v. NLRB, 803 F. App’x 876 (6th Cir. Mar. 12, 2020), enforcing in relevant part 366 NLRB No. 177 (Aug. 27, 2018). • In a second case, the Sixth Circuit held that the Board’s broad cease-and-desist order was fully warranted on the record, but that both the notice-reading requirement and the Board’s requirement that the Union have access to the Employer’s facilities and employees, were not justified. See Sysco Grand Rapids, LLC v. NLRB, 825 F. App’x 348 (6th Cir. Sep. 4, 2020), enforcing in part, denying in part 367 NLRB No. 111 (Apr. 4, 2019).
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