Busy year by NLRB produces key rulings for workers

WASHINGTON (PAI) – It’s been a busy year at the National Labor Relations Board.

The five-member board, which rules on most labor-management relations and disputes in the U.S., has – after years of controversy, Republican filibusters, and court cases – reached full strength. Led by its chairman, Mark Gaston Pearce, a Buffalo-area labor lawyer, the board has responded with a series of rulings important to workers.

The highest-profile ones were two of the most recent cases. In one, Browning-Ferris Inc., and Leadpoint Business Services vs. Teamsters Local 350, the board updated and modernized its definition of “joint employers” to declare that franchise-grantors – think McDonald’s headquarters – and franchise-holders – think of your local McDonald’s – are jointly responsible for obeying labor law at the local franchises and/or subcontractors.

That lets the workers at the local franchises organize and bargain, too, while ensuring that when they sit down to negotiate, they’re bargaining with someone on the other side with the power to make decisions and not be overruled – because both of the employers must be sitting on the other side of the table.

The other top ruling was when the board decided not to decide, in so many words, in the celebrated case of the Northwestern University football players who want to unionize. The NLRB’s Chicago regional director ruled the players are employees and the coaches and the university their employer, so the players could unionize and bargain over such things as medical treatment, the value of college scholarships and working conditions.

But the board ruled, 5-0, that it lacked jurisdiction over the case. It also said that even if it had ruled for the players, there would not be uniform application of the rule across college athletics, because only 17 of the 125 colleges in Northwestern’s group – the top football and basketball schools in NCAA Division I – are private. The rest are public universities.

As the Northwestern case shows, workers haven’t won every time at the NLRB. In another case, they lost an opportunity when a Florida paper company and the Steelworkers reached a settlement that resulted in a potentially important case being dumped.

The claim that started the case was resolved with a settlement. The case – which would have let the board rule on whether unions could charge “free riders” item by item for such things as handling grievances, rather than giving them free rides – was withdrawn.

Predictably, many board rulings drew praise from workers and their allies and caterwauling from plutocrats, the radical right and their Republican political puppets. In the latest repeat of a frequent scenario, a coalition of low-wage employers is now wining and dining the Republican-run 114^th Congress to overturn the Browning-Ferris joint employer ruling.

But the Northwestern case and the joint employer ruling weren’t the only cases important to workers that the NLRB decided in the past few months. Among the others:

• When a contract expires and the two sides keep talking, its provisions – including union dues checkoff – stay in place. The board, citing a 2012 appeals court ruling, said so on Aug. 27 in a case involving the Service Employees of Wisconsin and a hospital in Racine. Many employers cut off dues checkoff as a way to force workers and their unions to give in after a contract ends. “Like most other terms and conditions of employment, an employer’s obligation to check off union dues continues after expiration of a collective-bargaining agreement that establishes such an arrangement,” the board said.

• Employee handbook work rules that break labor law must be yanked, even if the whole handbook isn’t. That’s what a board majority ruled on Aug. 27 in a case involving Caesar’s Palace Casino in Las Vegas and Painters Local 159. Some rules in the handbook for its 3,000 workers were legal, the board majority said, but employees “could perceive” other rules as breaking their labor law rights. So the NLRB told Caesar’s – and, by implication, other employers – to toss offending rules, even if they don’t have to toss the whole handbook.

 “If the work rule does not explicitly restrict protected activities, it nonetheless will violate” labor law if (1) employees would reasonably construe the language to prohibit Section 7 (protected) activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights,” the board majority ruled.

•          You can challenge that handbook rule any time. In a prior similar case involving worker Sheila Monjazeb and Neiman-Marcus in Beverly Hills, Calif., the NLRB said there’s no time limit on bringing a case when a work rule violates labor law. “The board has held repeatedly the maintenance of an unlawful rule is a continuing violation, regardless of when the rule was promulgated,” the board said, by a 3-0 vote, on Aug. 4.

• You can’t force workers to sign a mandatory arbitration agreement for every dispute, with only a limited opt-out clause, in order to get the job. That’s what the board decided on Aug. 27 in a case pitting On Assignment Staffing Services against worker Arnella Freeman at Eden Medical Center in Castro Valley, Calif., in 2012. The firm said it would hire Freeman and send her to the center if she signed an employment agreement that included mandatory arbitration of everything, or if she signed it but opted out of arbitration within the first 10 days of getting the papers. The NRLB majority said that opt-out violated her rights.

The arbitration-only agreement “does not cease to be a condition of employment simply because employees are given an opportunity to opt out,” the board said. The opt-out “is still unlawful because it requires employees to prospectively waive their right to engage in concerted activity. Our conclusion follows directly from Supreme Court decisions holding that individual agreements between employees and employers cannot restrict employees’ Section 7 (labor law) rights.” NLRB Administrative Law Judge Joel Biblowitz issued a virtually identical ruling in early August, in a case pitting workers against Samsung Electronics in Tampa, Fla.

• If the union wants to represent a sub-group of workers in a firm and the boss wants to expand the group, the boss must prove why. That’s what the NLRB reiterated in a case involving the Graphic Communications Conference Local 503-M, a Teamsters sector, and a DPI SecuPrint, a printing company in Rochester, N.Y.

The local wanted to hold a representation election among the “hourly prepress, digital press, offset bindery, digital bindery, and shipping and receiving employees,” who were most – but not all – of the 20 hourly workers at the plant. Management wanted to add other pre-press operators to the group. That’s a common tactic of bosses: Expand the voting group to include known union foes, and thus beat the union at the election.

A 2011 NLRB ruling, Specialty Healthcare, which has drawn a lot of right wing and GOP flak – and, in the latest Senate money bill for the NLRB, a GOP-authored ban on its enforcement – allows such smaller units. Specialty Healthcare puts the burden on bosses to prove their case for expanding units. Management won several such pleas, but DPI lost this one.

“When a union seeks to represent a unit of employees ‘who are readily identifiable as a group…and the board finds the employees in the group share a community of interest after considering traditional criteria, the board will find the petitioned-for unit to be an appropriate unit,” Pearce wrote in the majority opinion on Aug. 20. “The burden is then on” advocates of enlargement “to demonstrate the additional employees share an ‘overwhelming community of interest’…such that there ‘is no legitimate basis'” to exclude them, because all the workers’ interests “overlap almost completely.” DPI management didn’t prove that here, Pearce added.

NLRB Los Angeles Regional Director Olivia Garcia made the same point in a July 21 decision when the Hilton Regis Point in southern California tried to double the number of workers who could vote in a bargaining unit sought by Unite Here Local 11. The union wanted the vote among 78 banquet servers and bartenders at the hotel. Management wanted to add other bartenders and cooks, along with maintenance workers and other occupations.

The National Labor Relations Act “does not require a petitioner (union) to seek representation of employees in the most appropriate unit possible, but only in an appropriate unit,” Garcia wrote. When the board certifies an appropriate unit with “a community of interest” among the workers, she added, it can order the election “despite a contention that the unit employees could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an ‘overwhelming community of interest’ with those in the petitioned-for unit.”

• A worker can file a one-person class action suit, as long as it’s reasonable to expect others to join. The NLRB majority said so in mid-August, in a case involving a ritzy

Manhattan restaurant and a worker who was shorted overtime pay. The restaurant, at 200

East 81^st Street, fired Marjan “Mario” Arsovski for complaining. He sued, saying it could also be a class action on behalf of 40 other workers there who toil for tips, though none had joined.

“Whether or not Arsovski’s filing was concerted activity, it was reasonable to conclude”

the restaurant “believed or at least suspected Arsovski was engaged in concerted group action,” protected by labor law, NLRB Chairman Pearce, backing the board’s ALJ, wrote.

• You can’t drastically increase health-care costs without bargaining about it. That’s what management of a Pontiac, Mich., hospital unilaterally did at the end of 2014, in the middle of its contract with by the Michigan Association of Police. The hospital switched health insurers, after telling the union for more than a year it contemplated no changes. Then, in late December, it presented a new plan as a fait accompli, with workers now shouldering 50 percent premium co-shares. The worker share had been 10 percent for those under age 60. The hospital gave the union 10 days to take it or leave it, and then, on Jan. 10, claimed – falsely – the union agreed. The board majority said it didn’t and ordered a rollback with the workers to be made whole. The dissenting GOP member wanted the whole mess arbitrated.
• The union-buster can prejudice a representation election and that leads to a rerun. That’s what happened at OK Foods in Heavener, Okla., just before a May 1 vote involving United Food and Commercial Workers Local 100. During a captive audience meeting – a management-called required meeting for workers as part of an anti-union campaign – OK VP Mike Martin asked “consultant” Matthew Perovic if it was correct to tell workers they would get raises if they voted against the union. Perovic said yes, Martin did so, and that prejudiced the vote, the NLRB ruled, 3-0. Local 100 lost 29-26, but the board, on July 15, ordered a rerun.

Most NLRB cases, however, are settled below the board level. There, the NLRB’s regional officers and local administrative law judges decided some interesting cases, too:

• Teachers at the Islamic Saudi Academy have a religious function, but bus drivers and other workers there don’t. That means an independent union seeking to represent the academy’s workers can seek votes in two separate units, NLRB Baltimore Regional Director Charles Posner ruled on Sept. 1: Professional workers, such as nurses and information technology specialists, and non-professional workers, such as janitors and aides.

There was a 2012 vote among all three groups – including the teachers – but the ballots were impounded. Posner ordered new votes among the two eligible groups. But the teachers can’t be unionized, he said, because the academy “explicitly gives them a religious function.”

Posner gave two examples at the Fairfax, Va., academy: Suspension of a social studies teacher for showing a video blaming the Sept. 11, 2001 terrorist attacks on the prophet Muhammad, and removal of a novel from an English lit teacher’s syllabus “because the novel included inappropriate subject matter for an Islamic environment.”

• Union banners and the inflatable rat are legal, as long as they don’t block people from going in and out of a worksite. NLRB Administrative Law Judge Jeffrey Wedekind reiterated that rule on Aug. 21 in a case involving Laborers Local 872 and Las Vegas’ West-gate casino. He also tossed out the NLRB general counsel’s allegation that since Local 872 didn’t actually represent the casino workers, it was conducting an illegal “secondary boycott.”

The Laborers had members holding large banners at a traffic island saying “LABOR DISPUTE: NIGRO DEVELOPMENT SUPPORTS IMMIGRANT LABOR ABUSE BY HIRING A&B ENVIRONMENTAL AT THE WESTGATE,” for renovations there. Sometimes the inflatable rat, cockroach, pig and cat joined the banner holders, but at other times, they were stationed in part of an entrance to an employee-only driveway, though they didn’t block it.

The NLRB’s general counsel, its enforcement officer, said the union had the right to station the banners at the traffic island, but it “went too far” by putting the rat, the cockroach and the others in the driveway. That’s a “secondary boycott,” the general counsel said, and it blocked access to the casino. Wedekind threw out that count, too, and ruled for the union.

• Just an unspecified threat to subcontract out all the work is not enough to toss out a vote on union representation. That’s what NLRB Tampa Regional Director Margaret Diaz ruled in mid-July in a case involving Dollar Thrifty Automotive Group, a Hertz subsidiary that operates rent-a-car counters at four Orlando-area hotels. United Service Workers Local 74 wanted to let the counter workers and mechanics at those four sites vote, but the bosses said they were about to subcontract out all the work, to NASS Rentals, so there should be no vote. They gave no date for the subcontracting.

Diaz ordered the vote. “Because no date-certain for the transfer of operations has been established, the petition should be processed and the election held,” the union contended. Diaz ruled “implementation of the decision to subcontract the work is neither certain nor imminent. The petition is timely.” She ordered a mail-ballot election.

The NLRB, of course, often is not the last word in labor law. Employers appeal many of its rulings to federal circuit courts. Those pending cases include:

• Can you legally stall the union’s information request for data it needs for bargaining and grievances? The NLRB said “no” to a four-month stall – waged against the Machinists – by Iron Tiger, a partially unionized trucking firm that transports Volvos from plants to dealerships – and Truck Movers, a non-union firm it subcontracted to do so.

When the IAM demanded, as labor law allows, documents on the deal so it could bargain about it, Iron Tiger refused, for at least four months. The NLRB ruled against Iron Tiger and the company took the case to the U.S. Court of Appeals in D.C. in late August.

“The board and this court have already held that when a union requests information that is presumptively relevant to carrying out its duties… the employer must either timely provide the information or carry the burden of showing why it should not be required to provide the information,” the board told the judges. Iron Tiger proved why it did not have to provide the data to the Machinists, but it took so long to do so that it broke labor law, NLRB’s brief adds.

Photo: In a major victory for workers one NLRB ruling said that the franchise granter for local McDonald’s stores is just as responsible for obeying labor law as are the managements of local stores themselves.  |  AP