Labor Relations & Wages Hours Update

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Dec 11, 2013 (3 years and 6 months ago)

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Labor Relations & Wages Hours Update


April

201
3

Hot Topics in
LABOR LAW
:

NLRB petitions Supreme Court for review of D.C. Circuit’s Noel Canning decision

By Lisa Milam
-
Perez, J.D.

As anticipated, the Obama administration today asked the U.S. Supreme Court to review
the D.C. Circuit’s ruling in
Noel Canning v NLRB
, a January 2013 decision that
invalidated the President’s recess appointments to the NLRB. As the questions presented
in the government’s
cert petition

attest, the issues at st
ake before the High Court are
much bigger than the scope of the Board’s authority or the ongoing efforts to rein in
agency activism, which was at the heart of the underlying dispute.

In an attempt to staff the agency in the face of a Senate logjam, Preside
nt Obama in
January 2012 made a controversial appointment of three NLRB members while the
Senate was not technically in recess but was meeting on a pro forma basis. In what was
seen by some labor law practitioners as “a stunning development,” the D.C. Circ
uit, in a
highly anticipated decision, held those appointments were unconstitutional and, as such,
the Board was operating without a proper quorum last year. In so ruling, the appeals court
sharply curtailed the current Board’s functions and called into qu
estion the validity of
every decision issued by the NLRB in the past year


including controversial rulings
reversing long
-
standing precedent and riling the employer community.

Addressing the constitutional question before it, the D.C. Circuit issued two
holdings:
first, that there is no recess between sessions


an intra
-
session recess does not count;
and second, that a vacancy itself must arise during an inter
-
session recess for a valid
recess appointment to be made. The first holding is contrary to an E
leventh Circuit
opinion; the second ruling is in conflict with three other circuits.

The questions presented ask the Court to consider the scope of presidential powers under
the Constitution’s recess appointments clause: “(1) whether the president’s recess
-
appointment power may be exercised during a recess that occurs within a session of the

2

Senate, or is instead limited to recesses that occur between enumerated sessions of the
Senate; and (2) whether the president’s recess
-
appointment power may be exercise
d to
fill vacancies that exist during a recess, or is instead limited to vacancies that first arose
during that recess.” The NLRB’s petition argues that the President’s recess appointment
authority is not confined to inter
-
session recesses; moreover, it as
serts, the President may
fill a vacancy that exists during a Senate recess even if the vacancy did not arise during
that recess.

The NLRB also contends that the D.C. Circuit’s decision would have “serious and far
-
reaching consequences,” rendering unconstit
utional many presidential recess
appointments made since World War II. “The decision also threatens a significant
disruption of the federal government’s operations


including, most immediately, those
of the National Labor Relations Board.” Not only does t
he ruling challenge every Board
ruling since January 2012, the NLRB argues, “it could also place earlier orders in
jeopardy.” Many Board members have been recess
-
appointed over the past decade, the
petition notes, and the NLRA imposes no time limit on peti
tions for review of Board
rulings.

High Court to consider whether federal district court has jurisdiction over
allegations of anti
-
union brutality abroad by non
-
U.S. employer

The U.S. Supreme Court will decide whether a federal district court has jurisdict
ion over
a foreign company in a suit alleging German auto company DaimlerChrysler was
involved in human rights violations

namely, kidnapping, torture, and murder of workers
deemed “subversives”

at an Argentina Mercedes Benz plant in the late 1970s. The Hig
h
Court granted cert in the case,
DaimlerChrysler Corp v Bauman

(
Dkt No 11
-
965
), on
Monday, April 22, to consider whether the fact that a company subsidiar
y (Mercedes
-
Benz USA) had substantial contacts in the state of California was enough to establish
personal jurisdiction.

The question presented: “whether it violates due process rights for a court to exercise
general personal jurisdiction over a foreign co
rporation based solely on the fact that an
indirect corporate subsidiary performs services on behalf of the defendant in the forum
State.”

Dawson, Flynn appointed as NLRB ALJs

The NLRB announced April 8 the appointments of Donna Dawson and Susan Flynn as
a
dministrative law judges in its Division of Judges, replacing two judges who retired late
last year. They are transferring to the Board from similar positions with the Social
Security Administration.

Judge Dawson was a judge with the Social Security Admini
stration for the last two and a
half years. Before joining Social Security, she spent 17 years with the EEOC in various
capacities, including as an administrative judge and a chief administrative judge. She also
spent time in private practice and as an att
orney with federal and state agencies. Judge
Dawson received her undergraduate degree from Howard University in Washington, DC,

3

and her law degree from the Houston University Law Center. She will take her
assignments from the Atlanta office of the Division

of Judges.

Judge Flynn served as a Social Security judge for three and a half years, including a stint
as the hearing office chief judge in Philadelphia. Before joining Social Security, she spent
22 years as an administrative judge with the EEOC, includin
g 15 years as the chief
administrative judge in Philadelphia. Earlier in her career, she also did trial work in
private practice and with local government agencies. Judge Flynn received her
undergraduate degree from the University of Delaware and her law d
egree from
Villanova University. She will take her assignments from the Washington, DC office of
the Division of Judges.

With offices in Washington, DC, New York City, San Francisco and Atlanta, the
Division of Judges is responsible for docketing unfair la
bor practice cases brought by the
Board’s General Counsel on charges filed by unions, employers, and individual
employees. The Division disposes of those cases by settlement or by conducting trials
and issuing initial decisions, which may then be appealed
to the five
-
member Board and
thereafter to an appropriate United States Court of Appeals.

Obama announces intent to nominate three members to Board, industry reacts

On April 9, the White House announced President Obama’s intent to nominate three
members to

the NLRB. The president plans to renominate Mark Gaston Pearce (D) and
has slated lawyers Harry L. Johnson III (R) and Philip A. Miscimarra (R ) for nomination
to the Board.

“I am pleased to nominate these individuals to serve on the National Labor Relat
ions
Board. By enforcing workplace protections, upholding the rights of workers and
providing a stable workplace environment for businesses, the NLRB plays a vital role in
our efforts to grow the economy and strengthen the middle class. With these nominati
ons
there will be five nominees to the NLRB, both Republicans and Democrats, awaiting
Senate confirmation. I urge the Senate to confirm them swiftly so that this bipartisan
board can continue its important work on behalf of the American people,” President
Obama said in a statement today.

Nominations for the five
-
member Board have previously been submitted by the White
House and are now pending for Richard F. Griffin, Jr. and Sharon Block, who are
currently serving as Board Members under recess appointments
.

Five
-
person package.

The controversy surrounding those recess appointments, however,
may doom the five
-
person package, according to Hal Coxson, a shareholder at Ogletree,
Deakins, Nash, Smoak, &

Stewart, PC and the Chair of the firm’s Government Relations
Practice Group. Coxson said that Miscimarra is one of the finest lawyers he knows, a
scholar, and has the makings of a very good Board Member and he also praised Johnson.
Nonetheless, he doubted

whether a five
-
person package that included the two recess
appointees would get past the Senate with
Noel Canning

likely to lurk before the
Supreme Court.


4

“I think it is unlikely that a five
-
member package will be confirmed, especially if it
includes the

2 recess appointees,” Coxson said. However, he suggested a possible
alternative


confirmation of a four
-
member Board composed of two Republicans and
two Democrats. Under that scenario, the Board could continue to function with ordinary
business.

Republic
an committee chairmen react.

Others reacted to the White House
announcement, as well. House Committee on Education and the Workforce Chairman
John Kline (R
-
MN) and Subcommittee on Health, Employment, Labor, and Pensions
Chairman Phil Roe (R
-
TN) said in a s
tatement: “While we welcome the president's long
-
overdue effort to resolve the crisis he created, today’s announcement does not abate the
chaos surrounding the National Labor Relations Board. Workers, employers, and unions
are stuck in a state of legal lim
bo as roughly 600 decisions issued by this board remain
constitutionally suspect. The House will act this week to prevent the board from
exacerbating the current legal uncertainty.”

According to the two Republican committee chairmen, “The American people
deserve a
board that will fairly and objectively administer the law. In recent years the board has
instead advanced extreme policies harmful to the rights of workers and job creators. We
intend to closely follow the confirmation process and expect the nomi
nees to demonstrate
a commitment to abandon an activist agenda”

Union president lends support.

AFL
-
CIO President Richard Trumka stated in a release
that “President Obama, with the nominations announced today, has taken an important
step toward restoring s
tability to our system of labor
-
management relations, which has
been in disarray since the DC Circuit’s decision in the
Noel Canning

case. For America’s
workers, businesses and the promotion of healthy commerce, putting forward a full, bi
-
partisan package
of nominees to the NLRB is the right thing to do.

Trumka pointed out that the package includes individuals who have challenged recent
NLRB actions and whose views on labor relations matters are sometimes contrary to
those of the union. “But working people
need and deserve a functioning NLRB, and
confirmation of a full package will provide that stability,” he said. “The labor movement
understands that when the NLRB is not at full strength and cannot enforce its orders,
America’s economy falls out of balance,

as it is today with record inequality and a
shrinking middle class. We urge members of the Senate to act quickly and confirm the
President’s full slate of nominees.”

Pearce has been Chairman of the NLRB since August 2011 and has been a Member since
March

2010. Johnson is currently a partner with Arent Fox LLP and Miscimarra is
partner in the Labor and Employment Group of Morgan Lewis & Bockius LLP.




5

Senators speak out on NLRB nominations

By Sheryl Allenson, J.D.

Two Senators from the Senate Committee on Health, Education, Labor & Pensions
responded to President Obama’s announcement that he intends to nominate Harry I.
Johnson, III and Philip A. Miscimarra, and renominate Mark Gaston Pearce, to the
NLRB. In a state
ment yesterday, Senator Tom Harkin (D
-
IA), Chairman of the HELP
committee, stated: “I am pleased that President Obama has put forth a bipartisan slate of
nominees to fill positions on the National Labor Relations Board. It is of paramount
importance


for
workers, for businesses, and the economy


to have a fully
-
functioning NLRB to adjudicate disputes in a timely fashion. As Chairman of the HELP
Committee, I pledge to give fair and timely consideration to the president’s package of
five nominees, and I hop
e that my colleagues on the other side of the aisle will do the
same.”

However, Senator Lamar Alexander (R
-
Tenn), the committee’s ranking member,
expressed other concerns. “As tradition requires, the president has properly nominated
two Republicans to serv
e on the National Labor Relations Board. It is now the Senate’s
role to exercise advice and consent on the nominees. As the Senate considers the
nominees, the two individuals who were unconstitutionally appointed should leave,
because the decisions in whic
h they continue to participate are invalid.”

On February 13, Alexander called on Sharon Block and Richard Griffin to “leave the
board,” after the DC Circuit in January issued the
Noel Canning

ruling. Alexander
introduced a budget amendment last month, alon
g with 17 cosponsors, to defund
decisions and regulations made by the unconstitutional NLRB “quorum.”

House Rules Committee passes resolution on Preventing Greater Uncertainty in
Labor
-
Management Relations Act

The House Rules Committee on April 10 passed a

resolution, by a 7
-
3 vote, providing for
consideration of
HR 1120
, the Preventing Greater Uncertainty in Labor
-
Management
Relations Act, under a closed rule. The resolution provides one hour o
f debate equally
divided and controlled by the chair and ranking minority member of the Committee on
Education and the Workforce (Workforce Committee). Additionally, it prohibits
amendment of the bill.

Among other things, the Preventing Greater Uncertainty

in Labor
-
Management Relations
Act would require the Board to cease all activity requiring a three
-
member quorum. The
bill also prohibits the Board from enforcing any action taken after January 2012 that
requires a quorum. According to information from the

Workforce Committee, the bill
does not prevent the NLRB’s regional offices from accepting and processing unfair labor
practice charges filed by an injured party, be it a worker, employer, or a union. The bill
would remove restrictions on the Board’s autho
rity after one of the following events
occurs: (1) the Supreme Court rules on the constitutionality of recess appointments; (2) a
Board quorum is constitutionally confirmed by the Senate; or (3) the terms of the

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“unconstitutional recess appointees” expire
when the First Session of the 113 Congress
adjourns.

According to information from the Workforce Committee, the bill “ensures any action
involving the so
-
called recess appointees is reviewed and approved by a future board that
has been constitutionally app
ointed.” The Workforce Committee approved the legislation
on March 20.

House approves Preventing Greater Uncertainty in Labor
-
Management Relations
Act


Just days after the House Rules Committee passed a resolution relating to the proposed
legislation, the

House of Representatives approved the Preventing Greater Uncertainty in
Labor
-
Management Relations Act (
HR 1120
). Among other things, the legislation
requires the NLRB to cease all activity requiring a three
-
member quorum until the legal
uncertainty surrounding the Board is appropriately resolved.


As approved by the House, HR 1120 will:




Require the Board to ceas
e all activity that requires a three
-
member quorum. The
bill also prohibits the Board from enforcing any action taken after January 2012
or appointing any agency personnel that require a quorum.



Protect the right of workers to petition for union elections.

The bill also does not
prevent the NLRB regional offices from accepting and processing unfair labor
practice charges filed by an injured party.



Remove restrictions on the Board’s authority after one of the following events
occurs: (1) the U.S. Supreme Cou
rt rules on the constitutionality of the recess
appointments; or (2) a Board quorum is constitutionally confirmed by the Senate;
or (3) the terms of the “unconstitutional recess appointees” expire when the First
Session of the 113th Congress adjourns.



Ens
ure any action involving the “so
-
called recess appointees” is reviewed and
approved by a future Board that has been constitutionally appointed.


Senate Republicans introduce companion bill barring NLRB from issuing decisions
with “quorum of one”

Lamar
Alexander (R
-
Tenn), Ranking Member of the Senate HELP Committee,
introduced a measure on Friday, April 26, that would prohibit the NLRB as currently
comprised from taking any action that would require a quorum. The legislation, the
Preventing Greater Uncer
tainty in Labor
-
Management Relations Act, is an identical
companion bill to
H.R. 1120
, which passed the House on April 12. The Senate version
has 11 Republican cosponsors.

The legislation would p
rohibit the NLRB from taking any action that requires a three
-
member quorum until the Board members constituting the quorum have been confirmed
by the Senate, the Supreme Court issues a decision on the constitutionality of the

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appointments to the Board mad
e in January 2012, or the first session of the 113th
Congress is adjourned. The bill also prohibits the Board from enforcing any action taken
after January 2012 or appointing any agency personnel that requires a quorum to do so. It
also would ensure any ac
tion involving the recess appointees is reviewed and approved
by a future Board that has been constitutionally appointed. (The legislation would not
prevent the NLRB regional offices from accepting and processing unfair labor practice
charges filed by an i
njured party, however.)

In January, the D.C. Circuit ruled in
NLRB v Noel Canning

that the recess appointments
of two members to the NLRB were unconstitutional, meaning only one of the current
sitting Board members has been confirmed by the Senate. Last we
ek, the Obama
administration formally petitioned the Supreme Court to review
Noel Canning
; the High
Court is expected to grant certiorari in light of the constitutional issues at stake, but it’s
unlikely that it will hear the matter during the current term
.

In the meantime, the Republican
-
backed measures would end “the stream of decisions
and regulations” issued by an invalid “quorum of one,” according to Alexander. Since
Noel Canning
, the Board has issued 44 published decisions and 113 unpublished
decision
s and orders. “Allowing these individuals to issue invalid decisions and
regulations will only threaten the rights of American workers, the very people the [B]oard
is intended to protect,” Alexander contends.

“The NLRB has traditionally made major policy c
hanges and interpretations only with
the affirmative votes of at least three board members, typically from a full five
-
member
[B]oard,” he added. “Yet, even with unconstitutionally recess
-
appointed board members,
the Board continues to issue decisions over
ruling well
-
established precedent and
replacing it with new policy that is favored by the administration’s supporters.”

In March, Alexander had introduced a budget amendment to defund decisions and
regulations issued by the “unconstitutional” quorum. Previ
ously, in February, he called
on Sharon Block and Richard Griffin, the members whose recess appointments were
invalidated by the appeals court, to leave the Board.

Shinners appointed Executive Secretary

NLRB Chairman Mark Gaston Pearce announced on April 1
2 the appointment of Gary
Shinners as Executive Secretary of the NLRB. In 2010, Shinners was appointed Deputy
Executive Secretary. He has served as the Agency’s Acting Executive Secretary since
January of this year, when former Executive Secretary Les Helt
zer retired. His
appointment begins immediately.

Shinners began his NLRB career in 1983 as an attorney on the staff of former Board
Member Howard Jenkins, and between 1984 and 1987 he worked as counsel on the staffs
of former Chairman Donald Dotson and for
mer Chairman James Stephens. In 1987,
Shinners transferred to the Division of Enforcement Litigation, Contempt Litigation &
Compliance Branch. He was promoted to Deputy Assistant General Counsel in the

8

Contempt Branch in 1989, and was later promoted to Ass
istant General Counsel (Branch
Chief) in the Contempt Branch in 1996.

From 2001 to 2003, Shinners served as Chief Counsel to former Member Dennis Walsh;
from 2003 to 2004, he served as Chief Counsel to former Member William Cowen; and
from 2004 to 2006, h
e again served as Chief Counsel to former Member Dennis Walsh.
Shinners served as Deputy Chief Counsel to former Chairman Wilma Liebman from
2006 to 2010.

Perez testifies before Senate HELP committee

Thomas E. Perez, nominee for Secretary of Labor, testified in a confirmation hearing
before the U.S. Senate Committee on Health, Education, Labor & Pensions. Maryland
Senators Barbara Mikulski and Senator Ben Cardin introduced Perez in the hearing,
which l
asted about two and a half hours. Chairman Senator Tom Harkin (D
-
IA) also
delivered an introduction, in which he lauded Perez and his accomplishments. Among
other things, Harkin stated, “Now more than ever, we need a dynamic leader at the helm
of the Depar
tment of Labor who will embrace a bold vision of shared prosperity, and help
make that vision a reality for American families. I am confident that Tom Perez is up to
this challenge.”

In his own
statement
, Perez provided an introduction to his personal and professional
background. He discussed his vision of the DOL, stating: “I share President Obama’s
vision of a growing economy powered by a rising middle class, with ladders of
o
pportunity available to everyone. The President has asked us all to consider three
questions in all of the decisions we make: How do we make America a magnet for jobs?
How do we equip our people with the skills they need to succeed in those jobs? And how
d
o we ensure that an honest day’s work leads to a decent living? These questions are at
the core of the mission of the Department of Labor. If confirmed, I will keep them there.”

DOL awards contract without project labor agreement; anti
-
PLA trade group
clai
ms victory

The U.S. Department of Labor has awarded Eckman Construction Company a $31.6
million contract to build a DOL Job Corps Center in Manchester, New Hampshire, after
removing a government
-
mandated project labor agreement (PLA) from the federal
proje
ct’s solicitation for construction services. Eckman submitted a bid that was more
than $6 million below the lowest offer when the project was subjected to a PLA,
according to Associated Builders and Contractors (ABC), a construction trade group,
which issu
ed a statement celebrating its “victory.”

“The award of this contract to a local contractor demonstrates the benefits of fair and
open competition in federal contracting and undermines specious claims made by PLA
advocates,” said Ben Brubeck, ABC’s directo
r of labor and federal procurement. “The
apples
-
to
-
apples comparison of the Job Corps Center bidding with and without a PLA
mandate proves these special interest schemes reduce competition, increase costs and
harm local contractors.”


9

According to ABC, the
solicitation for construction services to build the Job Corps
Center project was first issued in 2009, but the project was delayed for nearly three years
as a result of bid protests filed with the Government Accountability Office (GAO) against
repeated eff
orts by DOL to mandate a PLA. The first attempted PLA mandate for the
project was issued in September 2009 as a result of President Obama’s Executive Order
13502, which encourages federal agencies “to consider requiring the use of project labor
agreements
in connection with large
-
scale construction projects in order to promote
economy and efficiency in federal procurement.” In response, a federal contractor (with
the help of ABC) filed a bid protest with the GAO, prompting the DOL to cancel the Job
Corps Ce
nter solicitation in November 2009.

“Rather than remove the controversial PLA mandate and proceed with the procurement
process using fair and open competition, the DOL waited more than two years to issue a
new solicitation, and it still contained a PLA man
date,” said Brubeck. “Public record
requests revealed that the DOL spent $428,000 in taxpayer funds to hire a consultant, Hill
International, to complete two studies to evaluate the use of PLAs on federal contracts
and erroneously justify the DOL’s use of
a PLA on the Job Corps Center.”

In March 2012, federal contractors filed another GAO protest against the DOL’s second
PLA mandate, again with the assistance of ABC, according to the trade group. That
summer, the GAO advised the DOL to take corrective actio
n and rebid the project
without a PLA. The DOL canceled the solicitation


but after it had already received
and publicly unsealed bids that were subject to the PLA mandate. Finally, in October
2012, the DOL issued a solicitation free from a PLA mandate. T
hose bids were opened in
February.

“When the PLA mandate was removed, the number of qualified contractors bidding on
the project increased threefold,” said Brubeck. “Even contractors that submitted
proposals during both rounds of bidding lowered their pric
e by an average of 10 percent
when bidding on the solicitation without a PLA mandate.”

“It is time for the Obama administration to stop trying to steer lucrative federal
construction contracts to well
-
connected unionized firms and union members


some of
t
he president’s largest political supporters


through unlawful government
-
mandated
PLAs,” Brubeck said.

GOP senators challenge use of taxpayer dollars to fund foreign labor unions

Top Republicans on the Senate Finance and HELP Committees raised a challenge

today
to the use of American taxpayer dollars for promoting collective bargaining rights in
foreign countries.

Finance Ranking Member Orrin Hatch (R
-
Utah) and HELP Ranking Member Lamar
Alexander (R
-
Tenn.) wrote two separate letters to GAO Comptroller Gene
ral Gene
Dodaro and the DOL Acting Secretary Seth Harris calling for a full examination of the
financial transactions being made by the Bureau of International Labor Affairs (ILAB),

10

an office within the DOL, to various groups to assist with the establishme
nt of
international labor organizations.

Over the past several fiscal years, the Senators note, ILAB has made numerous awards
totaling millions of dollars to labor organizations, the United Nations, the Solidarity
Center, and other similar organizations, w
hose stated objective is to help establish labor
unions in foreign countries. In 2011, ILAB awarded a grant for $1.5 million to an
international development company for assisting labor unions in Vietnam engage in
collective bargaining. Most recently, ILAB
awarded a Columbian labor organization $1.5
million to help Columbian workers improve their collective bargaining rights, and
awarded $2.2 million to the Solidarity Center, an AFL
-
CIO organization, to strengthen
unions in Haiti and Peru.

“At a time when ou
r Federal budget is deteriorating rapidly, sequestration is impacting
essential services and the reality of vastly reduced Federal budgets with corresponding
cuts in public service delivery here at home, it is troubling to us that the Department
appears to

be spending millions of dollars of taxpayer funds to establish labor unions and
promote collective bargaining in foreign countries,” the senators wrote.

Blanket rule requiring confidentiality in employee investigations violates Sec.
8(a)(1); need for conf
identiality must be shown on a case
-
by
-
case basis, Division of
Advice says

An employer’s confidentiality rule unlawfully interferes with employees’ Section 7 rights
by precluding employees from disclosing information about ongoing investigations into
emplo
yee misconduct, the NLRB’s associate general counsel determined in a January 29,
2013,
advice memo

released last week.

At issue was a policy implemented by Verso Paper in the employe
r’s code of conduct:
“Verso has a compelling interest in protecting the integrity of its investigations,” the
policy stated. “In every investigation, Verso has a strong desire to protect witnesses from
harassment, intimidation and retaliation, to keep evid
ence from being destroyed, to
ensure that testimony is not fabricated, and to prevent a cover
-
up.”

This overbroad work rule violates Sec. 8(a)(1) under the Board’s decision in
Banner
Health
, the memo concludes. In that case, a divided NLRB held that a blanket prohibition
on discussing human resources complaints during the pendency of an investigation
violated the NLRA because it failed to minimize the impact on employees’ Sec. 7 rights.

An e
mployer “cannot maintain a blanket rule regarding the confidentiality of employee
investigations,” the memo stated. Rather, it must show the need for confidentiality “on a
case
-
by
-
case basis.” The employer has the burden “to demonstrate a particularized ne
ed
for confidentiality in any given situation.”

The Division of Advice directed the region to issue an unfair labor practice complaint
against the employer, absent settlement.


11

Leafleting in work area.

In another
issuance

from the Division of Advice, the Board’s
associate general counsel advised that Hyatt Hotels Corp. did not violate the NLRA by
prohibiting off
-
duty employees from distributing

union leaflets in the hotel’s lobby court
and patio. These areas are work areas, the memo stated, and the employer thus could
lawfully restrict distribution there under
Republic Aviation

and its progeny. Nor did the
hotel improperly orally modify its soli
citation and distribution policy when the hotel’s
director of security told the off
-
duty employees they could not distribute union literature
inside the hotel, but they could do so outside the facility. Concluding that the charges
against Hyatt were withou
t merit, the Division of Advice directed that they be dismissed,
absent withdrawal.

GC office advises regions on when to modify previously issued remedial orders
pursuant to Latino Express

In
GC Memorandum 13 03
, issued February 15, 2013, the acting general counsel outlined
the procedures that regional offices are to use when calculating excess income taxes
pursuant to the Board’s December 2012
Latino Express, Inc

ruling. It also directed the
regions, in all pending cases, to immediately begin requiring charged party/respondents
to file reports with the Social Security Administration when the backpay period spans
two or more ye
ars. In
Operations Memo 13
-
41
, issued on Monday, April 29, the associate
general counsel offered guidance to the regions as to when they should seek modification
of previously issued Board order
s to incorporate
Latino Express

remedies. A sample
Motion to Modify Remedial Order accompanies the memorandum.

Regions should review all pending compliance cases in which a Board order issued prior
to December 18, 2012, that involved the payment of backpay

where discriminatees could
be affected by the excess tax liability reimbursement, OM 13
-
41 advises. When deciding
whether to file a motion to modify the remedial provisions in these cases, the region
should consider whether the respondent has complied wit
h the Board’s order or is
engaged in serious discussions with the region regarding compliance efforts.

If the case is pending before an appellate court, the region should discuss with Deputy
Associate General Counsel Linda Dreeben or Assistant General Coun
sel David
Habenstreit whether it is prudent to withdraw the case before the court in order to file a
motion to modify, the memo instructs.

In
Latino Express
, the NLRB adopted the acting general counsel’s proposed remedies
requiring employers to reimburse t
he excess income taxes paid out by an employee as a
result of having received a lump
-
sum backpay award and the reporting of that backpay
allocation to the SSA. The Board reasoned that such a remedy would better serve the
remedial goals of the NLRA by ensur
ing that employees are truly made whole for
discrimination they suffered as a result of an employer’s violation of the Act.





12


L
EADING
CASE NEWS
:


2ndCir: District court erroneously held that NFL CBA clause on workers’ comp
offsets for players preempted
contrary state law

By David Stephanides, J.D.

In a summary order, the Second Circuit has ruled that a district court, in confirming an
arbitrator’s award, erroneously ruled that a clause in the NFL players’ contract on
workers’ comp offsets preempted state

law to the contrary (
NFL Players Association v
NFL Management Council
, April 19, 2013, per curium). In his award, the arbitrator
expressly declined to resolve a state preemption

question, and the district court’s ruling,
while not unrelated to the underlying arbitration, was not “necessary to vindicate [the
district court’s] authority, and effectuate its decree[ ].”

Like other injured workers, injured NFL players are entitled to
seek benefits from state
workers’ compensation funds. The clause in question, “Paragraph 10” of the CBA,
addressed a club’s rights when one of its players is entitled to receive both state workers’
comp and salary. Under such circumstances, Paragraph 10 au
thorizes a club to deduct the
player’s workers’ comp award from the amount it owes him in salary. The National
Football League Management Council (“Management”) and the players agreed that this
rule


which they referred to as the “offset”


is designed to

preclude players from
“double
-
dipping” by concurrently receiving workers’ compensation payments and salary.

Time versus “dollar
-
for
-
dollar” offsets.

In 2005, however, the players brought an
arbitration proceeding seeking a declaration that Paragraph 10 ma
ndates a time offset
versus a “dollar
-
for
-
dollar” offset. After extensive proceedings, the arbitrator issued an
award in favor of the players, stating that “Paragraph 10 of the NFL Player Contract
provides only for a time offset, and not for a dollar
-
for
-
d
ollar offset… [T]his is the law of
the shop under this CBA and is binding…” After the district court confirmed the award,
several clubs continued to seek dollar
-
for
-
dollar offsets in various state workers’ comp
tribunals and courts. Spurred by these action
s, the players returned to the district court
requesting injunctive relief. Later, the players moved the district court to hold
management in contempt when the “dollar
-
for
-
dollar” offsets persisted. The district court
denied the contempt motion, but declar
ed that “[i]n addition to providing for a time
offset, Paragraph 10 of the Player’s Contract preempts any state law to the contrary.”

Improper expansion of award.

In vacating the district court’s order, the court noted that
Section 301 of the LMRA does not

articulate the substantive or procedural rules of the
enforcement regime that it contemplates, but courts have in the past turned to the Federal
Arbitration Act (FAA), for guidance about arbitration enforcement conducted under
section 301. Because the FAA

requires district courts to accord significant deference to
arbitrators’ decisions, the “showing required to avoid summary confirmation of an
arbitration award is high,” the court noted. Here, when the district court held that
Paragraph 10 preempted contr
ary state law, “it in effect expanded the terms of the

13

arbitration award.” This was not necessary to vindicate the court’s authority, and
effectuate its order, the appeals court concluded. Accordingly, the order was vacated.

The case number is 12
-
0402
-
cv.

Attorneys: Jeffrey L. Kessler (Winston & Strawn) for Employees. Rex S. Heinke (Akin
Gump Strauss Hauer & Field) for Employers.


3rdCir: Past practice meant that maintenance clerk entitled to work weekends when
maintenance department worked; arbitration awa
rd reinstated

By Ronald Miller, J.D.

A federal district court erred in vacating an arbitration award that the parties’ past
practice meant a maintenance clerk was entitled to work Saturday overtime when the
maintenance department was scheduled to work, rul
ed the Third Circuit (
Akers National
Roll Co v Steelworkers
, April 4, 2013, Aldisert, R). In view of the collective bargaining
agreement’s ambiguous language and in light of the Third

Circuit’s ruling in
Ludwig
Honold Mfg Co v Fletcher
, the appeals court concluded that the arbitrator’s interpretation
drew its essence from the CBA and the arbitrator did not manifestly disregard the
agreement. The district court should not have disturbed

the award.

The union brought three grievances on behalf of an employee alleging that the employer
violated a “past practice” by failing to schedule the employee, a maintenance clerk, for
Saturday overtime when the maintenance department was scheduled to w
ork. The
arbitrator sustained the grievances and ordered the employer to pay the employee back
wages for the missed overtime. After the employer sued to vacate the arbitrator’s award,
the district court concluded that the award did not draw its essence fro
m the CBA, finding
that the agreement “unambiguously” gave the company the exclusive right to schedule its
workforce. The appeals court disagreed with the lower court’s reasoning, reversed its
judgment, and ordered enforcement of the arbitrator’s award.

Pa
st practice.

According to the grievances, the company directed the employee not to
work on Saturday shifts on three occasions when employees in the maintenance
department were scheduled to work. The union asserted that under past practice the
maintenance c
lerk had always worked when the maintenance department worked.
Because the employee would have been eligible for overtime if he had worked those
Saturday shifts, the union contended that the employer should be liable to pay him at the
overtime rate for the

hours he was wrongly not scheduled to work. When the parties were
unable to resolve the matter, it proceeded to arbitration.

Siding with the union, the arbitrator awarded the employee back wages and earned profit
-
sharing for the time he would have worked

on those weekends that the maintenance
department was scheduled to work. He found a binding past practice was established
when the employee was permitted to work on previous weekends when his name did not

14

appear on the work schedule; this had occurred und
er two different maintenance
managers. Thereafter, the company filed suit to vacate the arbitrator’s award, alleging the
arbitrator ignored the company’s exclusive right under the CBA to direct the workforce
and schedule overtime. The district court grante
d the employer’s summary judgment
motion and vacated the award. The union appealed.

Risks of arbitration.

The overarching question on appeal was whether the arbitrator’s
award drew its essence from the CBA. When parties knowingly and voluntarily bargain
fo
r arbitration to resolve disputes, the appeals court observed, they receive the benefits of
fast results and reduced dispute
-
resolution expenses. However, those benefits do not
come without risk, and “the possibility of receiving inconsistent or incorrect
rulings
without meaningful appellate review of the merits is one of the risks such parties must
accept when they choose arbitration over litigation.” As observed in
Ludwig
, federal
labor law elevates labor arbitrators to “an exalted status.” Thus, a court
cannot overrule
an arbitrator simply because it disagrees with his or her construction of the contract, or
because it believes its interpretation of the contract is better than the arbitrator’s. Here,
the employer accepted the risk of arbitration but now s
ought to avoid its result. The
appeals court refused to permit it to do so.

Ambiguity of agreement.

The employer contended that the provisions of the CBA
unambiguously vested it with the exclusive right to schedule its employees. This raised a
critical thr
eshold question, observed the court: was the CBA so unambiguous as to the
employer’s right to schedule its workforce that the arbitrator’s award manifestly
disregarded it? Here, the arbitrator focused his analysis on whether the agreement’s
zipper clause p
recluded a finding of past practice. As the district court corrected noted,
the arbitrator never explicitly stated that the management rights clause and “hours of
work” provision were ambiguous.

However, nowhere in the management rights clause did the righ
t to schedule appear.
Further, the court noted that the employer did not rely on the “hours of work” provisions
in challenging the grievances. Thus, the court concluded that the CBA was not so free of
ambiguity regarding the company’s exclusive right to sc
hedule its workforce that the
arbitrator’s inquiry into past practice and introduction of extrinsic evidence were not
permissible.

Essence from agreement.

On further examination, the appeals court also determined that
the arbitrator’s award drew its essenc
e from the CBA. Again, the court deferred to the
arbitrator’s ultimate conclusion that a past practice both could be and had been
established. Here, the arbitrator considered the contentions of the parties, the evidence
presented, and the history of the di
spute between the union and the employer. He then
determined that he was required to decide whether the parties established a past practice
by their actions in 2008, and whether that past practice was violated. Moreover, both the
employer and union focused

on whether a past practice could exist under the CBA,
specifically whether its zipper clause precluded introduction of past practice into the
agreement.


15

The appeals court deferred to the arbitrator‘s determination that the issue was whether a
past practic
e had been established and violated. Throughout his discussion, the arbitrator
emphasized that the past practice began before the adoption of the CBA and continued
thereafter. Accordingly, the appeals court also deferred to the arbitrator‘s conclusion that

a binding past practice had been established. Consequently, the judgment of the district
court was reversed.

The case number is 12
-
1727.

Attorneys: John B. Bechtol (Metz Lewis) for Employer. Daniel M. Kovalik, United
Steelworkers, for Union.

3rdCir: Subst
antial evidence supported NLRB rulings that employer and newly
acquired facility were single employer

By Ronald Miller, J.D.

Substantial record evidence supported rulings of the NLRB that an employer and a newly
acquired facility constituted a single
employer, the employer had a duty to bargain with a
union representing employees at the facility, and the employer acted unlawfully by
refusing to hire five former employees of the facility who were officers of the union,
ruled the Third Circuit (
Grane Health Care v NLRB
, April 5, 2013, Ambro, T). The court
denied the employer’s petition to review the Board’s order.

Background.

Prior to January 2010, Cambria County owned Laurel Crest nursing ho
me.
As a public employer, the county was subject to Pennsylvania’s Public Employee
Relations Act (PERA). In September 2009, Grane Healthcare, a private entity, entered
into a purchase agreement with the county to purchase the facility. The unions
represent
ing the nursing home’s employees opposed the takeover. On January 1, 2010,
Grane assumed operations of the facility and established a new entity, Cambria Care
Center, to operate it. Grane conducted initial hiring and retained most of the current
employees
who applied. Among the employees not hired by Grane were several union
officers, including the local president and business manager.

In anticipation of the sale, the union requested that Grane recognize it as the exclusive
collective bargaining representat
ive of Laurel Crest employees. The employer refused the
union request. Thereafter, the union filed an unfair labor practice charge with the NLRB.
In May 2010, following an investigation, the NLRB General Counsel issued a complaint
alleging that Grane unlaw
fully refused to recognize and bargain with the union as the
representative of bargaining unit employees, and that it unlawfully refused to hire union
officers who applied for employment. The Board issued an order requiring the company
recognize and bargai
n with the union and hire five employees to the positions for which
they had applied.

Single employer status.

Here, the employer challenged three decisions of the NLRB: (1)
that Grane and Cambria Care were a single employer; (2) its use of the successorshi
p

16

doctrine to find that Grane had a duty to bargain with the union; and (3) that substantial
evidence did not support that the company violated the NLRA by not hiring five
employees.

The Board considers four factors in determining whether separate entities

are a single
employer: (1) functional integration of operations; (2) centralized control of labor
relations; (3) common management; and (4) common ownership. Grane asked the appeals
court to reverse the Board’s ruling that the evidence demonstrated Grane
controlled the
labor relations at Cambria Care. However, the court declined to do. The employer’s
position rested on discredited testimony by Cambria Care’s top administrator that he, not
Grane, controlled the day
-
to
-
day operations at the facility after th
e transfer. The Board
found that testimony self
-
serving and overwhelmed by other evidence in the record.
Moreover, the court found significant evidence that Grane made important decisions
relating to establishing the operations of the facility during the a
cquisition period,
including hiring Laurel Crest’s workforce, determining initial salaries and benefits, and
putting in place a variety of employment policies. In fact, the court observed, the hiring
decisions at issue in this dispute occurred
during

the p
eriod of acquisition.

Further, there was substantial evidence in the record that Grane continued to control
operations at Cambria Care after January 1, 2010. Thus, the Board’s determination that
Grane and Cambria Care was a single employer was based on de
tailed factual findings
that described two deeply integrated companies with centralized control emanating from
Grane.

Duty to bargain.

Next, the appeals court turned to the employer’s challenge to the
NLRB’s use of successorship doctrine to find that it ha
d a duty to bargain with the union.
Generally speaking, under this doctrine a new employer has a duty to bargain with an
incumbent union that represented the predecessor’s employees when there is a substantial
continuity between the predecessor and success
or enterprises. In this instance, Grane did
not contest the presence of the requisite substantial continuity. Instead, it argued that the
successorship doctrine cannot be applied where the predecessor employer is a state (or its
political subdivision) not
subject to the NLRA. Whether the facility was subject to the
Act when the county operated the facility was not determinative, said the court. Rather,
the employer was being held liable for its own refusal to recognize and bargain with the
union.

Impositio
n of liability was permissible provided the union had established majority
support under Pennsylvania law and could therefore establish a presumption of majority
support under federal law. There was nothing in the Act that precluded the Board from
finding
that certification under Pennsylvania law was sufficient. Thus, the Third Circuit
saw no reason why the NLRB’s determination that the successorship doctrine applied
equally to a public
-
to
-
private transition was irrational or inconsistent with the Act. It
t
herefore joined other Circuit Courts of Appeals in approving the application of the
successorship doctrine in this context.


17

Refusal to hire.

Finally, the appeals court examined the Board’s finding that the
company engaged in an unfair labor practice by ref
using to hire five former employees.
The Board found that the refusal to hire was motivated by antiunion animus. Here, the
appeals court found that substantial evidence supported the Board’s finding that the
employer’s justification for not hiring the empl
oyees was a mere pretext. The employer
asserted that it decided not to hire the employees based on negative references. However,
the Board determined that the proffered reasons were pretextual because that testimony
was contradicted by other evidence and w
as not internally consistent. Because the court
did not consider this rationale unreasonable, it declined to disturb the Board’s decision.
Thus, it denied the employer’s petition to review and granted the Board’s cross
-
petition
for enforcement.

The case nu
mbers are 11
-
4345 and 11
-
4537.

Attorneys: Richard J. Antonelli (Babst, Calland, Clements & Zomnir) for Employer.
Gregory P. Lauro for NLRB.

4thCir: Claims for coverage under CBA by temporary employees of school district
properly removed to federal court an
d dismissed

By Ronald Miller, J.D.

A school district properly removed a case brought by a group of temporary employees
seeking to gain benefits under an arbitration award and the underlying collective
bargaining agreement to federal court, ruled the Fourth

Circuit (
Mayo v Board of
Education of Prince George’s County
, April 11, 2013, Niemeyer, P). Moreover, the
appeals court concluded that the lower court properly granted the school district’s m
otion
to dismiss the temporary employee’s claims in view of the fact that they were expressly
excluded from the bargaining unit, so that neither of their substantive claims stated a
plausible claim for which relief could be granted.

Removal to federal cour
t.

Temporary employees of a school district filed a class action
complaint against the district and their union asserting employee compensation claims.
Specifically, they alleged that even though a collective bargaining agreement excluded
“temporary employ
ees” from a bargaining unit, they were entitled to the benefits of an
arbitration award between the district and the union as well as benefits from the
underlying CBA. After the complaint was filed in state court, the school district removed
the matter to
federal court. The union also agreed to removal, but the employees opposed
the motion. Before the district court, the employees filed a motion to remand, asserting
that removal was invalid because the union did not timely file its own notice of removal.
Th
e district court dismissed the employee’s complaint for failure to state a claim. After
the district court refused to reconsider its ruling, they filed a notice of appeal.

The union and school district were parties to a CBA that defined the bargaining unit

to
include all classified employees except a group including temporary employees. At the
union’s request, the employer provided it the names of all temporary employees who had
been employed for more than 60 days and performed the same work as permanent

18

cl
assified employees. Thereafter, the union filed a grievance contending that the district’s
practice of hiring substitute and temporary employees to fill permanent positions violated
the CBA. The arbitrator ruled in favor of the union, and the parties craft
ed a settlement
awarding over $1 million in back pay amounts. The district also agreed to hire a
minimum number of full
-
time bargaining unit employees.

Duty of fair representation.

The temporary employees filed this class action in state
court, in which th
ey allege that they were entitled to damages under the arbitration award,
and the union breached its duty of fair representation by misleading them regarding the
award, and they alleged that they were third
-
party beneficiaries under the CBA.
Ultimately, th
e matter was removed to federal court where it was dismissed.

On appeal, the temporary employees contended (1) that the Union’s consent to removal
was inadequate to effect a removal on its behalf; (2) that the district court erred in
concluding that the Un
ion did not owe the temporary employees a duty of fair
representation and that they were not entitled to the benefits of the arbitration award; (3)
that the district court erred in dismissing their claim for breach of the CBA based on a
third
-
party benefic
iary theory; and (4) that the district court abused its discretion in
striking their motion for reconsideration of the dismissal order.

The Fourth Circuit concluded that the union adequately consented to the school district’s
notice of removal, and affirme
d the district court’s dismissal of the temporary employee’s
complaint for failure to state a claim for relief.

In removing this case from state court to federal court, the school district stated that it had
consulted with the union and that the union had
consented to the removal. However, the
union did not sign the notice of removal, nor did it timely file its own notice or a
written

consent to the district’s notice. Under such circumstances, the temporary employees
contend that the removal was defective a
nd that the district court erred in refusing to
remand this case to state court.

The text of 28 U.S.C. Sec. 1446 governs the removal of a case to federal court. However,
the statute does not address how a case involving multiple defendants is to be removed

or
how the defendants must coordinate the removal, if coordination is required. Nonetheless,
the Supreme Court in
Lapides v Bd of Regents of Univ Sys of Ga
, construed the statute to
include a “unanimity requirement,” such that all defendants must consent
to removal.
Still, neither the statute nor the Supreme Court’s decisions have specified how defendants
are to give their “consent” to removal. The Fourth Circuit has not addressed this precise
question.

Section 1446 requires at least one notice of removal
signed by at least one attorney, in
accordance with FRCP 11, attesting to the fact that removal is warranted and is not
pursued for an improper purpose and that the facts alleged are justified and supported.
However, they do not require that in a case invo
lving multiple defendants where all
defendants must consent to removal that each of the defendants sign the notice of
removal or file a separate notice of removal complying with Sec. 1446(b).


19

Thus, the Fourth Circuit saw no policy reason why removal in a m
ultiple
-
defendant case
cannot be accomplished by the filing of one paper signed by at least one attorney,
representing that all defendants have consented to the removal. Moreover, in this case,
the union did file papers early on, signed by its attorney, in
dicating that it had consented
to the removal.

Accordingly, the appeals court concluded that a notice of removal signed and filed by an
attorney for one defendant representing unambiguously that the other defendants consent
to the removal satisfied the req
uirement of unanimous consent for purposes of removal.
Because the union adequately consented to the removal filed by the school district,
removal was effective in this case and that the district court did not err in declining to
remand the case to state c
ourt. The judgment of the district court was affirmed.

The case numbers are 11
-
1816 and 11
-
2037.

Attorneys: Richard T. Seymour (Law Offices of Richard T. Seymour) for Employees.
Abbey G. Hairston (Thatcher Law Firm) for Employer.


7thCir: Rescission of
unilateral changes in working conditions was appropriate
restoration of status quo, not micro
-
management by court

By Ronald Miller, J.D.

A district court’s denial of interim relief for unilateral changes made by an employer
between a union election and the

union’s certification was reversed by the Seventh
Circuit (
Harrell v American Red Cross
, April 23, 2013, Cudahy, R). Although the court
below had reasoned that rescission of the unilate
ral changes would force it to “micro
-
manage” employment relationships, the intent of Sec. 10(j) is to “restore the status quo’
as it existed before the onset of the unfair labor practices, and the lower court also had
found that the unilateral changes had
disturbed the status quo. Moreover, the district
court’s finding of judicial micro
-
management was misplaced, since rescission of the
changed terms would merely return the parties to the lawful status quo. On the other
hand, the district court did not abuse

its discretion by ordering restoration of the merit pay
program.

In 2007, blood collection specialists for the American Red Cross (ARC) elected a new
union. During the unionization process, ARC filed repeated objections, forcing election
ballots to be imp
ounded and delaying certification of the union. These objections were
later overruled by the NLRB. In the meanwhile, during the period between the election
and the union’s 2010 certification, ARC made a number of changes in the terms and
conditions of empl
oyment for its union
-
represented employees. Those changes were
made without notice to or bargaining with the new union. As a result of the employer’s
unilateral changes, worker involvement in union activities declined precipitously.
Employees feared retali
ation by ARC if they associated with the union, and some
employees were discouraged by the union’s failure to prevent the employer’s suspension
of a merit pay program.


20

The union and NLRB sought injunctive relief from the employer’s unilateral changes in
wo
rking conditions pending the Board’s administrative proceedings against ARC. An
administrative law judge held that the employer acted unlawfully by making these
unilateral changes. ARC, however, argued that it could make these changes because the
union was

not yet certified due to pending objections. The district court found that the
NLRB had shown a likelihood of success on the merits and that the newly formed union
had suffered irreparable harm because of ARC’s unilateral changes. However, it ordered
only

a rescission of ARC’s failure to grant scheduled merit pay increases to unit
employees (and not the other unilateral changes made), although it issued a subsequent
temporary injunction prohibiting ARC from making further unilateral changes to
employment c
onditions. Both parties appealed.

Injunctive relief.

On appeal, ARC wanted to lift the injunction, while the NLRB wanted
an order for rescission of the remaining unilateral changes made by the employer.
Applying well
-
settled law, the appeals court determi
ned that the Board satisfied each
criterion for finding injunctive relief: (1) the NLRB has no adequate remedy at law; (2)
the union will be irreparably harmed without interim relief, and that potential harm to the
union outweighs potential harm to the emp
loyer; (3) public harm would occur without the
relief; and (4) the Board has a reasonable likelihood of prevailing.

As an initial matter, the appeals court observed that it is well established that “an
employer who makes unilateral changes pending a decisi
on on union certification
objections acts at its peril.” Here, the Board demonstrated the irreparable harm resulting
from ARC’s unilateral changes that prevented the union from discussing these terms and
conditions of employment, and therefore, “strike at
the heart of the Union’s ability to
effectively represent the unit employees.” These unilateral changes included: suspending
employees’ merit pay increases; discontinuing matching contributions to employees’
401(k) plan; closing the defined pension plan to

new employees; changing health
insurance benefits; promoting team leaders to team supervisors while having them
continue to perform unit work; reassigning bargaining unit work outside the bargaining
unit; and decreasing the number of personal time
-
off hou
rs an employee could carry over.
Further, in light of the decline in employee participation in union activities following
ARC’s unilateral changes, back pay alone would not remedy the adverse impact to the
union, as well as the employees, in the interim pe
riod.

Also at stake in a Sec. 10(j) proceeding is the public interest in the integrity of the
collective bargaining process. Here, the harm posed to the union of allowing unilateral
changes to stand was apparent in the fact that the union had already beco
me less popular
with the employees, which was enough, said the appeals court. Consequently, in view of
the fact that all four factors favored interim injunctive relief, the district court did not
abuse its discretion in granting partial relief by ordering
the rescission of the merit pay
freeze.

Micro
-
management.

But it did not go far enough. Despite recognizing that ARC’s
actions were potentially harmful and necessitated injunctive relief, the district court
granted only partial relief. Applying the same four
-
factor analysis, the Seventh Circuit

21

found that the di
strict court’s limited injunction failed fully to address the harms that it
recognized. Although the district court reasoned that rescinding all of the changes made
by ARC would require it to “micro
-
manage the employment relationship,” concluding
that thos
e changes were best addressed in bargaining discussions, it cited no specific
evidence of practical difficulties in rescinding the remaining changes or what it meant by
“micro
-
managing” the employment relationship. Thus, the lower court abused its
discreti
on in failing to order rescission for all of ARC’s unilateral actions. The district
court’s denial of interim relief for the other unilateral changes was reversed.

The case numbers are 12
-
1264 and 12
-
1362.

Attorneys: John A. Mantz for NLRB. Michael J. Modl

(Axley Brynelson) for Employer.

8thCir: Arbitrator exceeded authority under CBA by reinstating employee
terminated for just cause following child pornography conviction

By Ronald Miller, J.D.

A district court properly vacated an arbitrator’s award after c
oncluding that, in reinstating
an employee who had been convicted of possession of child pornography, he exceeded
his authority under a collective bargaining agreement, ruled a divided Eighth Circuit (2
-
1) (
Northern States Power Co dba Xcel Energy v Electrical Workers (IBEW), Local 160
,
April 1, 2013, Shephard, B). Once the trial court determined that the employer had “just
cause” to terminate the employee, he had no authority to fash
ion a remedy other than
termination, ruled the appeals court majority. Judge Murphy dissented.

Child pornography conviction.

In July 2010, the employer conducted a routine
background check of the employee and discovered that he had recently pled guilty to
three felony counts of possession of child pornography. The employee was sentenced to
probation and did not inform the employer of his conviction or the terms of his probation.
One of those terms was that the employee was to have “no contact with a minor u
ntil
approved.” Upon learning of the terms of the probation, the employer determined that it
could not guarantee that the employee would have no contact with a minor while
performing his job duties and terminated his employment. The union filed a grievance

on
his behalf and the matter was submitted to arbitration. Ultimately, the arbitrator ordered
the employer to return to work at a comparable position without back pay.

The employer filed this action to vacate the arbitration award on the basis that after

the
arbitrator found “just cause” for the employee’s termination, his subsequent reinstatement
of the employee exceeded his authority under the CBA. The district granted vacated the
arbitrator’s award of reinstatement.

“Just cause” termination.

Here, the
Eighth Circuit had to determine whether the
arbitrator concluded that the employer had “just cause” for terminating the employee.
While the union argued that the arbitrator found no just cause, the employer said that the
arbitrator did find that it had jus
t cause to terminate the employee, but then exceeded his

22

authority under the CBA by reinstating his employment. According to the employer, it
was irrelevant that the employer did not use words “just cause” in discussing the
employer’s termination of the em
ployee.

In finding that the arbitrator exceeded his authority, the Eighth Circuit looked to
decisions of the Second Circuit in
187 Concourse Assoc v Fishman

and the Fifth Circuit
in
Am Eagle Airlines, Inc v Air Line Pilots Ass’n Int’l
, along with its own p
rior decision
in
St Louis Theatrical Co v St Louis Theatrical Brotherhood Local 6
. The language of the
arbitrator’s decision that the employer had demonstrated justification for its decision to
terminate the employee was sufficient to show that the arbitra
tor found the termination
was supported by “just cause.” Having answered that question in the affirmative, he
simply had no authority to address the question whether reinstatement was warranted or
to fashion a remedy different from termination. Thus, the a
ppeals court ruled that the
district court properly vacated the arbitrator’s award for reaching beyond his authority
under the CBA.

Dissent.

In dissent, Judge Murphy argued that the arbitrator’s award did not reveal that
he clearly made a finding of “just
cause.” Rather, he argued that the arbitrator’s order to
reinstate the employee to his position drew its essence from the CBA, and the district
court’s decision should be reversed and the arbitration award enforced.

The case number is 12
-
1186.

Attorneys:
Michael John Moberg (Briggs & Morgan) for Employee. Richard Allen
Williams, Jr. (Williams & Iversen) for Employer.

11thCir: Denying temporary reinstatement to employees involved in union
organizing campaign not abuse of court’s discretion

By Ronald Miller,

J.D.

The Eleventh Circuit upheld a federal district court’s refusal to issue a Sec. 10(j)
temporary injunction requiring an employer to temporarily reinstate six employees
allegedly discharged because they were involved in a union organizing campaign bec
ause
the requested injunctive relief was not just and proper (
NLRB v Hartman and Tyner, Inc
dba Mardi Gras Casino
, April 16, 2013, Marcus, S). There were no allegations of any
ongoing unfair

labor practices after the six discharges at issue, nor any indication that the
violations reasonably found to have been committed would be repeated absent an
injunction.

Union organizing campaign.

The employer operated a casino and greyhound racetrack,
em
ploying approximately 220 employees. In 2004, the employer and a union entered into
a memorandum of agreement (MOA) in which the employer committed to take a “neutral
approach to unionization,” essentially agreeing to recognize the union as collective
barg
aining representative if a majority of employees signed union authorization cards. In
turn, the union agreed not to engage in organizing efforts in the casino’s public areas or

23

during the employees’ working times. The MOA was set to expire on December 31,
2011, and the employer’s workforce remained non
-
unionized. In the face of this deadline,
the union mounted a full campaign to organize the workforce, including assembling an
employee organizing committee.

About six weeks before the deadline, union represe
ntatives made an unannounced visit to
the casino, ostensibly to introduce themselves to the casino’s management. Eight off
-
duty
employees who were also on the employee organizing committee were part of the
delegation. According to the union, it intended to

exercise its right under the MOA to
access the non
-
public areas of the casino to speak with employees. On the other hand, the
employer viewed the visit as a highly public stunt in order to spur the flagging union
organizing campaign. It asserted that the
union delegation stormed the casino and caused
a disruption. The union was asked to leave, and it did.

Reinstatement request.

The following day, the union delegation returned to the casino
with off
-
duty employees; this time, the delegation did not leave u
ntil after police were
summoned. It claimed that it was asserting its rights under the MOA. The next day five of
the employees who participated in the union visit were discharged. A sixth discharge
involved a member of the organizing committee who allegedl
y interfered with a
coworker’s work by discussing union business while the two were on duty. The union
filed charges with the NLRB. An administrative complaint issued and subsequently, an
NLRB regional director sought a Sec. 10(j) injunction, in part to re
instate the six
discharged employees. Following an evidentiary hearing, the district court denied the
petition’s request for temporary reinstatement of the discharged employees.

Legal standard.

As an initial matter, the appeals court observed that the dis
trict court
applied the correct legal standard, recognizing that interim injunctive relief should be
granted only when two conditions are satisfied: (1) there is reasonable cause to believe
that the alleged unfair labor practices have occurred, and (2) the

requested injunctive
relief is just and proper. The district court found that the NLRB had met both the legal
and factual components of the first prong. At issue on appeal, however, was whether the
district court abused its discretion in concluding that i
nterim reinstatement of the
discharged employees was not “just and proper.”

Just and proper standard.

With respect to whether the injunctive relief of reinstatement
was “just and proper,” the district court observed that the union’s organization drive had
“grown cold” prior to any of the discharges at issue. It also noted that it took the NLRB
more than six months after the terminations and more than four months after the union
brought the terminations to its attention before it filed its Sec. 10(j) petitio
n.
Consequently, the district court concluded that the remedy of temporary reinstatement
was neither “just” nor “proper.”

Congress enacted Sec. 10(j) because administrative resolution was so time
-
consuming
that guilty parties could violate the NLRA with im
punity during the years of pending
litigation, thereby often rendering a final order ineffectual or futile. Employee
reinstatement, however, has been singled out as a particularly drastic remedy.


24

Injunctive relief satisfies the “just and proper” standard “
whenever the facts demonstrate
that without such relief, any final order of the Board will be meaningless or so devoid of
force that the remedial purposes of the NLRA will be frustrated. A district court abuses
its discretion “when it misconstrues its prop
er role, ignores or misunderstands the
relevant evidence, and bases its decision upon considerations having little factual
support.”

None of those things occurred in this case. To begin with, the district court did not
misconstrue its role but articulated
and applied the relevant legal standards. Moreover,
the NLRB did not claim that the district court erred in this respect. Importantly, the
district court did not make unsupported findings or ignore key evidence. It concluded that
the union’s organizing cam
paign had grown cold prior to the discharges, and that in light
of the NLRB’s delay in bringing charges, no lingering harm caused by the discharges
remained that would be better alleviated by temporary injunctive relief as compared to a
final Board order.
Both of those conclusions were amply supported by the record,
reasoned the appeals court. Finding that the district court did not abuse its discretion, the
appeals court affirmed its judgment.

The case number is 12
-
14508.

Attorneys: Elinor L. Merberg for N
LRB. Robert Louis Norton (Allen Norton & Blue) for
Employer.

11thCir: No evidence that unions’ failure to pursue untimely grievance was
discriminatory

By Joy P. Waltemath, J.D.

Unwilling to reverse summary judgment granted to a union and its local, the Ele
venth
Circuit ruled in an unpublished decision that a terminated union member had not
established a prima facie case of discrimination based on the unions’ refusal to grieve her
termination (
Gilmore v National Mail Handlers Union Local 318
, April 23, 2013, per
curiam). The member, an African
-
American female, presented no evidence that the local
union, which refused to pursue her grievance because it was untimely, treated a white
male empl
oyee’s untimely grievance differently where the local dismissed his grievance
as soon as it discovered it was untimely. And, because she presented no evidence of any
similarly situated individual outside her protected class, the national union’s refusal to

grieve her termination because it didn’t file grievances on behalf of any individual
employees could not be shown to be discriminatory.

The postal service terminated the employee for unsatisfactory attendance by a letter dated
September 5, which she claim
ed she did not receive until October 16 because she had
moved. She contacted the local union by phone that day to find out why she had been
terminated, but she did not make a written request that the local file a grievance until late
December. The local re
fused, saying the 14
-
day window to file a grievance had expired
back on September 19 (based on the date of the termination letter). After she contacted

25

the national union, which also refused to grieve her termination because it filed no
individual employee

grievances, she sued, alleging a host of claims.

Title VII, Sec. 1981 claims.

Only the employee’s race and gender discrimination claims
proceeded to the summary judgment stage, which the district court granted in the unions’
favor. On appeal, the court fo
und no reason to disturb this ruling. The local union
presented undisputed evidence that it had dismissed the alleged white male comparator’s
grievance as soon as it discovered it was untimely. Also, the national union’s evidence
that it simply did not pur
sue grievances on behalf of individuals was similarly
undisputed.

Dismissed claims for breach of contract, retaliation, and conspiracy.

These claims
were dismissed by the district court, and the appeals court summarily noted why it
agreed. First, the empl
oyee’s claim that the unions breached the collective bargaining
agreement’s discrimination provision was concededly essentially the same claim as her
Sec. 1981 claim, which the lower court dispensed with on summary judgment. Second,
the employee claimed th
e unions retaliated against her for filing charges with the NLRB
and EEOC; however, she filed those charges after the unions refused to pursue her
grievance, and so could not plead any plausible causal retaliatory connection. Moreover,
her claim that the u
nions had jointly conspired to violate her Title VII and Section 1981
rights was not cognizable. Finally, the failure to grant her motion for sanctions against
both unions was not an abuse of the district court’s discretion, concluded the appeals
court.

T
he case number is 12
-
14019.

Attorneys: Tammy Gilmore, pro se. Tobe Lev (Egan Lev & Siwica) for local Union.
Bruce R. Lerner (Bredhoff & Kaiser) for national Union.

DCCir: Exec’s statements reflected merely that he would not personally attend
bargaining se
ssions, not that hospital would refuse to negotiate with union

By Joy P. Waltemath, J.D.

Statements by a hospital president during an organizing campaign were not, in the overall
context of his comments, a threat that unionization would be futile, the D.C.

Circuit
ruled, granting the hospital’s petition for review (
Flagstaff Medical Center, Inc v NLRB
,
April 26, 2013, Brown, J). Nor was the termination of a button
-
wearing employee for
atten
dance problems that concededly entitled the hospital to fire him an unlawful attempt
to discourage union activity. However, the appeals court agreed with the Board that
substantially changing the work schedule of another employee, apparently within days of

her appearing in a pro
-
union newspaper ad, was unlawful, and it granted the Board’s
cross
-
application for enforcement on this charge.

In the midst of a union campaign to organize the hospital’s housekeeping and food
services employees, the hospital presid
ent met with food service workers to “learn about

26

employees’ issues, concerns, and problems.” The hospital president said that he
appreciated the “direct activity,” that “with a union it would be difficult to have that same
direct communication,” and indic
ated that he didn’t believe a union would be necessary
for the hospital. Following those statements, he went on to say words to the effect that if
there was a union, “I would not be negotiating with the union,” or, “you won’t be
negotiating with me.” The A
LJ dismissed the Sec. 8(a)(1) charges as to these statements
but the Board reinstated them, suggesting employees reasonably could interpret them to
mean the hospital would not bargain with the union and that they were an unlawful threat
that unionization w
ould be futile.

President’s statements.

The court found itself “baffled” by the Board’s “interpretive
leap” that the president’s statements indicated unwillingness for the hospital to bargain
with the union rather than merely a statement about his own personal attendance at
whatever bargaining
meetings might occur. Given the totality of the circumstances,
especially testimony from outspoken union advocates who all qualified his statement to
have been that with a union, they wouldn’t be having “any meetings with him
like this
,”
the court was unco
nvinced that the Board’s interpretation was accurate. Moreover, it took
the Board to task for its oral argument comment that the court should not second
-
guess
the Board’s expertise on the president’s demeanor or tone in making the comments.
Instead, it poi
ntedly remarked that it was the ALJ who was charged with evaluating
witness credibility, and the ALJ found no violation here.

Termination for absenteeism.

It was undisputed that the housekeeper, terminated in
August after he began wearing a union button in July, had a record of poor attendance
that warranted his termination under the hospital’s attendance policy. Indeed, he had
already received verbal and w
ritten warnings and a three
-
day suspension. Leading up to
his August termination, he was absent once in May, once in June, and twice in July. Even
though his termination was not ordered until after he began wearing the union button, the
court found this ea
sily explained by the fact that a new interim director of housekeeping
took over in June, and he didn’t know about the employee’s latest absences until the
department secretary told him. The court was unwilling to credit the Board’s arguments
that either t
he interim director or the VP who approved the firing was shown to have an
actual or imputed unlawful motive, and it would find no Sec. 8(a)(1) and (3) violations
here.

Scheduling change after pro
-
union ad.

Disagreeing with the hospital’s position, the
co
urt did find that the unusual changes to the June work schedule of an employee who
appeared in a late May pro
-
union newspaper ad were based on unlawful antiunion
animus. The department director assigned the employee a very unusual shift schedule

lots of we
ekends

soon after the employee’s very public ad supporting the union, which
the director admitted seeing. This same director told employees not to discuss their
wages, interrogated an employee about the usefulness of a union (and in the process,
called the

nurses’ union “foolish”), and implicitly suggested a newly hired employee
would be laid off if the hospital unionized. The hospital attempted to raise an issue about
the timing of the work schedule’s release, including whether it was in fact so unusual, b
ut
the court would not consider these arguments because they were not raised before the

27

Board and there were no extraordinary circumstances to justify their consideration.
Accordingly, the court granted the Board’s petition for enforcement in this respect.

The case numbers are 11
-
1326 and 11
-
1398.

Attorneys: Steven Dean Wheeless (Steptoe & Johnson) for Employer. Elizabeth Ann
Heaney for NLRB.

NLRB: Employer’s assault of union rep while ejecting him from construction site
trailer was unlawful interference u
nder NLRA

By Ronald Miller, J.D.

An employer acted unlawfully where its construction superintendent ordered two union
reps to leave a construction jobsite and physically assaulted one of them in ejecting him
from a construction trailer after they warned hi
m of the possibility of area standards
picketing at the site, ruled the NLRB (
Norquay Construction, Inc
, April 15, 2013). The
physical assault was plainly in response to the union re
p’s protected activity of seeking
work for union represented employees, and therefore, violated NLRA Sec. 8(a)(1).

The employer was the general contractor on a construction project to renovate the
municipal bus station in Phoenix, Arizona. Although the emp
loyer was non
-
union, the
employees of the concrete subcontractor were represented by a local union affiliated with
the Southwest Regional Council of Carpenters. Under the union’s contract with the
subcontractor, it was to have access during working hours t
o jobsites were the
subcontractor’s employees were working, so long as they made reasonable efforts to
notify the subcontractor of their presence on the site and did not interfere with work.

Area standards.

The employer’s project superintendent maintained
a construction trailer
as an office at the construction site. He posted a sign prohibiting solicitation without an
appointment. Representatives of the union entered the trailer without an appointment,
identified themselves and asked for subcontractor infor
mation on some carpentry
-
related
work. They advised the superintendent that had they been aware that the employer had
more subcontracting work to bid out they would have given him the union’s list of area
standards contractors. In response, the superintend
ent told the union reps to look up the
information in a publicly available source, and complained that union reps were coming
to the jobsite every day. They warned him that the union could picket the site if it had a
labor dispute, but added that it would
picket only if area standards wages were not being
paid.

The representatives’ statement triggered an angry response by the superintendent, who
loudly and profanely demanded they leave the trailer. As they did so, he pushed one of
them in the back. When th
e representative objected, the superintendent pushed him a
second time, causing him to fall and strike his hand and neck on a railing. The reps
reported the incident to their superiors and the police were called, but they did not arrest
the superintendent.

Thereafter, the union filed a complaint with the NLRB. Although an

28

administrative law judge characterized the superintendent’s conduct as “repugnant and
inexcusable,” she dismissed the complaint.

Legitimate goals.

On review, the NLRB disagreed with the l
aw judge. The Board found
that the union representatives were engaged in protected activity when they visited the
trailer and the superintendent’s physical assault of one of them in response to that activity
violated NLRA Sec. 8(a)(1). Here, the union reps

entered the employer’s trailer for the
purpose of soliciting it to use area standards contractors for future work. That activity
was “undisputedly protected under Sec. 7.” This objective of expanding employment
opportunities for represented employees plai
nly sought to further legitimate goals under
Sec. 7.

In defense of its conduct, the employer neither contested the inherently protected nature
of the purpose of the rep’s visit, nor did it argue that they engaged in any threatening
behavior. Rather, the e
mployer contended that its actions did not violate the Act because
it had an exclusionary property interest in its trailer sufficient to justify the exclusion of
the representatives, who did not comply with its lawful rule prohibiting solicitation
without
an appointment.

However, the Board disagreed with the employer’s assertions. The employer’s asserted