Transcript Slide 1

LABOR LAW UPDATE
Michael A. Murphy
Assistant Business Manager/General
Counsel
Overview
• Labor Law Developments
• Cases of Interest
– Dues Checkoff
– Breaks
– Employer Work Rules
– Upcoming Developments
• Questions
Solicitation
• ConAgra Foods, Inc., 361 NLRB No. 113 (2014)
– Solicitation means only the presentation of
authorization cards for signature
– Difference between solicitation and discussion
– Unlawful to order a blanket prohibition on
discussion of unions, even during worktime
Company E-Mail System
• Purple Communications, Inc., 361 NLRB No.
126 (2014)
– Overruling Register-Guard, 351 NLRB 1110 (2007)
– Employees that are provided access to computers
for work purposes may use them for Section 7
communications
Collective Arbitration
• Murphy Oil USA, Inc., 361 NLRB No. 72 (2014)
– Reaffirming D.R. Horton, Inc., 357 NLRB No. 184
(2012), enf. denied, 737 F.3d 344 (5th Cir. 2013)
– Yellow Dog Contract
Objectionable Campaigns-Company
• Labriola Baking Co., 361 NLRB No. 41 (2014)
– Inaccurate translation
– English: “We will exercise our legal right to hire
replacement workers”
– Spanish: “We will hire a legal workforce”
Objectionable Campaigns-Union
• Durham School Services, LP, 360 NLRB No. 108
(2014)
– Not objectionable for Union to distribute
campaign flyer containing photos of particular
employees along with statement misrepresenting
their intention to support the Union
Applying Specialty Healthcare
• Macy’s, Inc., 361 NLRB No. 11 (2014)
– Cosmetics employees in large department store
– Readily identifiable as a group
– Unit is coextensive with a departmental line
drawn by the employer
– Other employees do not share an “overwhelming
community of interest”
Applying Specialty Healthcare
• Bergdorf Goodman, 361 NLRB No. 4 (2014)
– Shoe sales in large department store
– Boundaries of unit not coextensive with lines
drawn by employer
– Shoe salespersons actually work in two separate
departments and only make up a part of each
department
Weingarten
• Ralph’s Grocery Co., 361 NLRB No. 9 (2014)
– Employer unlawfully discharged employee who
demanded representation before submitting to
drug test, and when denied, refused to take the
test
Weingarten
• E.I. Dupont de Nemours & Co., Inc., 362 NLRB
No. 98 (2015)
– Employee was denied representation
– Was fired for lies he told in the interview
– Backpay and reinstatement is appropriate remedy
Deferral
• Babcock & Wilcox Construction Co., 361 NLRB
No. 132 (2014)
– Standard for deferral of Section 8(a)(1) and 8(a)(3)
charges changed
– Deferral only if arbitrator is explicitly authorized to
decide statutory issue, actually decides the issue,
and Board law “reasonably permits” the resulting
award
Deferral
• Babcock & Wilcox, cont’d.
– Party seeking deferral has the burden of showing
that deferral is appropriate
– Collyer deferral will now require both parties to
agree to submit statutory issue to arbitration
– General Counsel Memo GC 15-02 (February 10,
2015)
Cases of Interest
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Dues Checkoff
Breaks
Employer Work Rules
Upcoming Developments
Dues Checkoff
• Electrical Workers Local 2088 (Lockheed Space
Operations), 302 NLRB 322 (1991)
– Union violated Section 8(b)(1)(A) when it
continued to accept dues checkoff from employer
after employee resigned from the Union
– Board explained that, if dues checkoff
authorization is not premised on membership in
union there would be no violation
Dues Checkoff
• Fry’s Food Stores, 358 NLRB No. 66
(2012)(reaffirmed, 362 NLRB No. 36 (2015))
– Dues Checkoff agreement, by its terms, is not
conditioned on union membership
– Union and Employer did not violate the Act by
refusing to discontinue checkoff after employees
resigned from Union
Dues Checkoff
• Teamsters Local 406 (Pioneer Resources, Inc.),
Advice Memo, 07-CB-137758 (February 19,
2015)
– Member resigned when Michigan went right-towork
– Dues checkoff not conditioned on Union
membership
– No violation when union continued to collect
Dues Checkoff
I hereby authorize my Employer and its successors to deduct from my pay each week an amount
equivalent to Local Union working dues, which is 4-1/2% of my gross earnings, and forward
same to Local 520, International Brotherhood of Electrical Workers, P.O. Box 18508, Austin,
Texas 78760-8508.
This authorization and assignment is voluntarily made in consideration for the cost of
representation and collective bargaining and is not contingent upon my present or future
membership in the Union. This authorization and assignment shall be irrevocable for a period of
one (1) year from the date of execution or until the termination date of the Inside Agreement,
whichever occurs sooner, and from year to year thereafter, unless not less than thirty (30) days
and not more than forty-five (45) days prior to the end of any subsequent yearly period I give my
Employer and Union written notice of revocation bearing my signature thereto.
Breaks
• Parsons Electric, LLC, 361 NLRB No. 20 (2014)
– Breaks not mentioned in CBA
– Employer changes break policy
– CIR denies Union grievance
– Board finds unlawful unilateral change
Employer Work Rules
• Jury’s Boston Hotel, 356 NLRB No. 114 (2011)
– Decertification petition
– Unlawful work rules in employee handbook
– No evidence that rules had ever been enforced
– Board finds mere maintenance of rules is
sufficient to require re-run of election
Employer Work Rules
• Report of the General Counsel Concerning
Employer Work Rules, Memorandum GC 15-04
(March 15, 2015)
– Comprehensive Memo describing lawful and
unlawful work rules
– Can be used as a guide to pick out unlawful rules
from employer handbooks
Upcoming Developments
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Access to Property
Dismissal of Decertification Petitions
Duty to Bargain over Discipline
Successorship
Oil Capitol
Non-Competes
Grievance Handling Fees for Non-Members
Construction Industry Picketing
Access to Property
• Roundy’s, Inc., 30-CA-17185
– Denying non-employee Organizers access to
property while allowing other organizations to
solicit—what standard applies?
Dismissal of Decert Petitions
• Bradken, Inc., 19-RD-112390
– Whether the Board should reverse Truserv Corp.,
349 NLRB 227 (2007)
– Should decertification petition be dismissed when
pending ULP charges are settled?
Duty to Bargain Over Discipline
• Alan Ritchey Inc., 359 NLRB No. 40 (2012)
– Employer must bargain over discretionary
discipline when Union is newly certified
– Must employer bargain over discretionary
discipline during hiatus between contracts?
– What is the remedy?
Successorship
• Spruce-up, 209 NLRB 194 (1974)
– “Perfectly clear” successor must bargain with
incumbent Union before making changes
– However, employer may set initial terms if it
announces its intent to do so before hiring
employees
Successorship
• General Counsel seeks reversal of Spruce-up
– GVS Properties, LLC, 29-CA-077359
– Novel Service Group, Inc., 02-CA-113834
– Nexeo Solutions, LLC, 13-CA-46694
Oil Capitol
• W.D. Manor Mechanical Contractors, Inc., 357
NLRB No. 128 (2011)
– Employer unlawfully refused to hire overt salts
– General Counsel seeks to overrule the Bush
Board’s decision in Oil Capitol Sheet Metal, Inc.,
349 NLRB 1348 (2007) (shifting the burden in
salting cases to Union to prove salt would have
continued working for lawbreaking employer)
Non-Compete Agreements
• Thermal Tech, Inc., Advice Memo, 19-CA068292 (May 16, 2012)
– Construction contractor requires craft employees
to sign non-compete agreement
– NLRB Division of Advice finds that the agreement
is not unlawful on its face
– Interference with salting is too attenuated to
establish a violation
Grievance Handling Fees
• United Steelworkers (Buckeye Florida Corp.),
12-CB-109654
– Board is considering allowing Unions in right-towork states to collect fees from non-members to
compensate for costs of handling grievances
– Board solicited amicus briefs. Last day to file was
June 1, 2015
Construction Industry Picketing
• IBEW Local 357 (Desert Sun Enterprises), 28CC-115255 (ALJD July 28, 2014)
– General Counsel seeks to overturn Board law
holding that statements of intent to picket at a
construction site violate secondary boycott
provision unless accompanied by Moore Dry Dock
assurances
Remedies for Undocumented
• Memorandum GC 15-03, Updated Procedures
in Addressing Immigration Status Issues that
Arise During Unfair Labor Practice Proceedings