LABOR LAW UPDATE

Michael A. MurphyAssistant 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

• 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-to-

work– Dues checkoff not conditioned on Union

membership– No violation when union continued to collect

Dues CheckoffI 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

• 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-CA-068292 (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-to-

work 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), 28-CC-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