DC Circuit: Veritas Health Services, Inc. v. NLRB

Given the initial delay, a three-month delay categorically does not backdate the certification year; Board did therefore not err in quashing subpoenas to look for evidence of delay.

Board did not abuse discretion in holding that the per se effects of unfair labor practices outweighed single comment to the contrary in the record when considering effect on certification election; insufficient showing that subpoena quash prevented discovery of facts relevant to the certification election.

No futility exception for motions to the Board for reconsideration.

Challenged remedies upheld.

No error in denial of permission to intervene, since intervenor had options under the act, and the limitations of the remedy don't rise to constitutional levels.

https://www.cadc.uscourts.gov/internet/opinions.nsf/618739309D02504E852582C600521E7A/$file/16-1058-1739853.pdf

DC Circuit: Pennsylvania State Corrections v. NLRB

Employer bargained to lawful impasse, since the award of back pay at the time of impasse met the regulatory requirements. Parties had sufficient notice of the issues for jurisdiction.

Dissent:  Employer improperly conflated the back-pay issue with other issues, and since the timing of the impasse determines the back-pay,  simple declaration of impasse at a time when the disbursement was likely to be lawful doesn't establish that the impasse was per se lawful, since the bargaining that produced it seemed to put the back-pay in peril.  No jurisdiction over this claim, as the employer didn't raise it.

https://www.cadc.uscourts.gov/internet/opinions.nsf/76C77F8449B89631852582C200522637/$file/16-1328-1739390.pdf

Fifth Circuit: In-N-Out Burger, Incorporated v. NLRB

As the company could not demonstrate that it was trying to create a theatrical reality in the fast-food restaurant, the prohibition on the wearing of advocacy buttons infringed the Act; ALJ's findings on the sturdiness and safety of the button designs was reasonable.

Argument that subsequent buttons might be less safe and fall into the hamburgers was waived, as it wasn't raised before the Board.

http://www.ca5.uscourts.gov/opinions/pub/17/17-60241-CV0.pdf

Ninth Circuit: Nu Image v. IATSE Local 720

The relevant statute only grants federal jurisdiction over claims of CBA violations; a suit alleging that the provision is void for lack of formation under state law therefore does not state a claim under the statute.

Dissent: It can be construed as a request for declaratory judgment as to the plaintiffs own alleged violation of that provision of the CBA.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/20/16-55451.pdf

DC Circuit: Cellco Partnership v. NLRB

When holding that employees dismissal for untruthfulness was pretextual, ALJ impermissibly intruded into business judgment by determining that other violations of company policy that were generally unpunished were more severe.

Discussions involving Section 7 matters are not categorically shielded from such rules.

https://www.cadc.uscourts.gov/internet/opinions.nsf/8BA86CC8FAF54C77852582B10051858A/$file/17-1158-1736658.pdf

Ninth Circuit: ASARCO, LLC. v. Allied Industrial and Service Workers

If an employer concedes arbitrability of a question, an arbitrator reviewing a collective agreement that prohibits changes in arbitration may reform the terms of the agreement for mutual mistake, subject to rational basis review; such reformation does not offend public policy.

Dissent:  As the arbitrator's authority arises from the collective agreement, the no-add clause stripped the arbitrator of jurisdiction sufficient to amend.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/19/16-16363.pdf

DC Circuit: Island Architectural Woodwork v. NLRB

Given the substantially identical business, substantive control, and anti-union sentiment evinced, substantial evidence for Board's finding that diversion of part of production to a building out back supervised by the CEO's daughter was in fact a corporate alter ego.

https://www.cadc.uscourts.gov/internet/opinions.nsf/122F0282A1444FB7852582AD0054EF86/$file/16-1303.pdf

DC Circuit: Tamosiunus v. NLRB

No rational basis to think that Local's collection letter and employer's subsequent collection of full dues from employees who had requested financial core status could not be thought by a rational person to tend to restrain or coerce employees not to enforce their rights under the Act.

https://www.cadc.uscourts.gov/internet/opinions.nsf/9B76B67B9F567375852582AD0054B245/$file/16-1338-1736047.pdf

Seventh Circuit: Part-time Faculty Association v. Columbia College Chicago

Where a Board representation decision partially grounded in an interpretation of the terms of the CBA conflicts with a subsequent artbitrator's ruling on the question of representation, the latter is unenforceable as to the representation, as the parties in the second proceeding are bargaining for the arbitrator's opinion, not the Board's interpretation of the Act.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:17-3492:J:Flaum:aut:T:fnOp:N:2171484:S:0

Ninth Circuit: April Bain v. California Teachers Ass'n

Where the original parties to the suit challenging union fees leave covered employment during the pendency of the appeal and can therefore no longer receive the sought equitable and injunctive relief, the case is moot; it cannot be converted into an action for damages, and an organizational plaintiff cannot be joined to preserve standing. 

The remedy is dismissal without a vacatur of the earlier decision on the merits.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-55768.pdf

DC Circuit: Colorado Fire Sprinkler, Inc. v. NLRB

Board's determination that a series of CBA recitations of exclusive representation was sufficient to establish sufficient employee support for the union when initially certified pre-hire was insufficiently reasoned and an abuse of discretion.

https://www.cadc.uscourts.gov/internet/opinions.nsf/C8F18CF446B7250D852582A600522CF6/$file/16-1261.pdf

Ninth Circuit: NLRB v. Ironworkers Local 433

First Amendment ruling as to speech against the government was an insufficient change in existing law to justify relief from judgment enforcing a contempt adjudication on secondary picketing under the Act, as alternate mechanisms of speech such as leaflets are still available, and the Act is content-neutral.

Concur: Not ripe, as only a vague desire to picket, and no indication of enforcement plans by management.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/88-07283.pdf

Sixth Circuit: Barbara Fletcher v. Honeywell Int'l, Inc.

The durational clause of a CBA applies to health coverage absent clear affirmative language to the contrary.

Lifetime health benefits for survivors of workers does not imply a similar vesting for workers; in fact, it argues against any ambiguity as to the question where the agreement is silent on that point.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0108p-06.pdf

Fifth Circuit: Martha Kinard v. Dish Network Corporation

Imbalance between unionized and non-unionized workers' wages provided sufficient equitable necessity for injunction against unilateral imposition of final offer.

NLRB waived grounds for cross-appeal seeking injunction against future wage losses by not including the argument below and in the ULP.

http://www.ca5.uscourts.gov/opinions/pub/17/17-10282-CV0.pdf

Sixth Circuit: Sheet Metal Employers v. Absolut Balancing

Labor, Arbitration


Federal law governs on issues of formation relevant to CBA agreements to arbitrate.


Sheet Metal Employers v. Absolut Balancing

Ninth Circuit: PACIFIC MARITIME ASSN V. NLRB

Labor, FRCP


Prospect of imminent settlement does not mean that District Court has statutory, constitutional, or extraordinary jurisdiction over interlocutory appeal from NLRB proceeding, as the prospective intervenor might either intervene in the agency proceeding prior to final order or appeal the eventual settlement.


PACIFIC MARITIME ASSN V. NLRB

Seventh Circuit: Sheet Metal Workers Internatio v. Horning Investments, LLC

Labor, FCA


Union can bring a False Claims Act action relative to its members work -- primary jurisdiction of the Department of Labor does not displace the claim to the NLRB.

Payroll deductions for an insurance plan for which the worker was not yet eligible did not constitute a violation of the relevant Act.

Reliance on accountants dos not completely dispel mens rea.


Sheet Metal Workers Internatio v.   Horning Investments, LLC

Ninth Circuit: ROSEMARY GARITY V. APWU NATIONAL LABOR ORG.

Employment, Labor, Res Judicata

An allegation of discrimination against a union can state a claim without alleging  breach of the duty of fair representation.


ROSEMARY GARITY V. APWU NATIONAL LABOR ORG.

Seventh Circuit: William Charles Construction v. Teamsters Local Union 627

Labor Law, Statute of Limitations, Arbitration

Clock did not begin to run on the time to challenge a decision of a committee authorized by a CBA until the movant received a copy of the notice of decision at the commencement of litigation.
.
Where a contract explicitly supersedes the CBA and establishes an exclusive remedy, party is not bound by CBA arbitration outcome.

Special appearance at arbitration to dispute its validity does not establish consent to arbitration.

William Charles Construction v.   Teamsters Local Union 627

Eighth Circuit: The Finley Hospital v. NLRB

Labor

Provision in CBA requiring a 3% raise on the anniversary of employment was not a bargained-for term that becomes part of the status quo after the end of the agreement; since each worker only received one raise, it could be considered a one-time benefit.

Dissent: One-time nature is an affirmative defense that should be considered when deciding if the union waived continuance of the term, and here, the union didn't waive the continuance of the term.

The Finley Hospital  v.  NLRB