Litigation Docket

(Updated April 2017)

SUPREME COURT

Decided:

NLRB v. SW General, Inc. – On March 21, the Court decided that it violated the Federal Vacancies Reform Act for Lafe Solomon to continue to serve as Acting General Counsel of the NLRB after the President nominated him to serve as General Counsel on a permanent basis.

Pending:

NLRB v. Murphy Oil USA, Inc. (consolidated with Epic Systems Corp. v. Lewis and Ernst & Young LLP v. Morris) – Whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice under the NLRA.  Cert granted on January 13, 2017.

COURTS OF APPEALS

D.C. Circuit

Decided:

FedEx Home Delivery v. NLRB – Holding that FedEx Home Delivery drivers are independent contractors rather than employees.  The AFL-CIO filed an amicus brief in support of the NLRB.

DirecTV v. NLRB – Holding that employees’ statements to a local television statement during a labor dispute were protected under Jefferson Standard.

Rush University Medical Center v. NLRB & Teamsters Local 743 (“Rush I”) – Holding that the NLRB appropriately defined the proper voting group in an Armour-Globe election involving an existing bargaining unit that does not conform to the NLRB’s healthcare bargaining unit rule.

Sands v. NLRB & UFCW Local 700 – Dismissing the petition for review as moot and vacating the Board’s decision.  The case concerned whether the union’s Beck notice was unlawful because it failed to specifically state the reduced dues amount an employee would pay if she became an objector.

DHL Express v. NLRB & APWU – Enforcing the NLRB’s decision that an employer committed an unfair labor practice when it prohibited off-duty employees from distributing union literature in a mixed-use area.  The court explained that “an employer’s ability to restrict pro-union activity by an off-duty employee legally on the premises – in a nonwork area – is quite limited.”  To limit employee union activity in a mixed-use area, the employer must show “special circumstances” in the sense that the restriction is necessary to maintain production or discipline.

Pending:

Volkswagen Group of America, Inc. v. NLRB — Whether the NLRB properly held that the petitioned-for maintenance unit at the employer’s manufacturing facility in Chattanooga, Tennessee was an appropriate unit.

Rush University Medical Center v. NLRB & Teamster Local 743 (Rush II) – Whether the Board appropriately defined the proper voting group in a second Armour-Globe election that also involved an existing bargaining unit that does not conform to the NLRB’s healthcare bargaining unit rule.  

North America’s Building Trades Unions et al v. OSHA – Union and industry challenges to OSHA’s silica standards.  The AFL-CIO, North America’s Building Trades Unions, the United Steelworkers, and the United Auto Workers are parties in the case.

Browning-Ferris Industries of California, Inc. v. NLRB & Teamsters Local 350 – Whether Browning-Ferris and the company that supplies it labor are joint employers of the supplier employer’s workers.

Brusco Tug and Barge v. NLRB & International Organization of Masters, Mates & Pilots, ILA –Whether mates on tugboats are supervisors.

Price-Simms, Inc. v. NLRB – Whether a mandatory arbitration agreement signed as a condition of employment that forbids collective claims violates the NLRA.  The AFL-CIO represents the individual employee intervenor who was the charging party before the Board.

First Circuit

Pending:

Bekele v. Lyft – Whether a mandatory arbitration agreement signed as a condition of employment that forbids collective claims violates the NLRA.  The AFL-CIO filed an amicus brief in support of the employee in this case.

Second Circuit

Decided:

Constellation Brands v. NLRB & Teamsters Local 601 – Upholding the Board’s approach to bargaining unit determinations set forth in Specialty Healthcare as lawful, but granting the employer’s petition for review with regard to the petitioned-for unit of cellar employees at a large-scale wine production facility and remanding to the Board for further proceedings.

Third Circuit

Pending:

The Rose Group v. NLRB – Whether a mandatory arbitration agreement signed as a condition of employment that forbids collective claims violates the NLRA.  The AFL-CIO represents the individual employee intervenor who was the charging party before the Board. Oral argument was held on October 5, 2016.

Fourth Circuit

Decided:

Nestle Dreyer’s Ice Cream Company v. NLRB & IUOE Local 501 – Denying the employer’s petition for review and upholding the Board’s application of the approach to bargaining unit determinations set forth in Specialty Healthcare in a case involving a unit of maintenance employees in a production setting.

Pending:

AT&T Mobility Services, LLC v. NLRB – Whether a mandatory arbitration agreement signed as a condition of employment that forbids collective claims violates the NLRA.  The AFL-CIO represents the individual employee intervenors who were the charging parties before the Board. Oral argument was held on December 7, 2016.

Fifth Circuit

Decided:

National Federation of Independent Business v. Perez – The Court dismissed this appeal of a preliminary injunction against enforcement of the U.S. Department of Labor’s rule interpreting the advice exemption of the LMRDA’s reporting requirements for persuader activity as moot following the district court’s issuance of a permanent injunction.  The AFL-CIO had filed an amicus brief in support of DOL’s appeal of the preliminary injunction.

Simms v. ILA Local 1752 – Holding that Mississippi’s “Right-to-Work” law does not apply to hiring hall fees.

Murphy Oil USA, Inc. v. NLRB – Granting the employer’s petition for review and rejecting the Board’s conclusion that a mandatory arbitration agreement signed as a condition of employment that forbids collective claims violates the NLRA.

Dresser-Rand Company v. NLRB and CWA – (1) Whether the President’s recess appointments to the NLRB were invalid such that the Board lacked a quorum when deciding this case; and (2) whether the Board’s findings of violations of the NLRA relating to the company’s lockout and subsequent discriminatory reinstatement of locked-out employees and strikers were supported by substantial evidence. On July 23, the court granted the NLRB’s motion to vacate the Board’s decision and remand the case back to the Board in light of Noel Canning.

Macy’s, Inc. v. NLRB & UFCW Local 1445 – Denying the employer’s petition for review and upholding the Board’s application of the approach to bargaining unit determinations set forth in Specialty Healthcare in a case involving a unit of cosmetics and fragrances sales employees in a department store. On November 18, 2016, the Court denied the employer’s petition for en banc rehearing.

Pending:

Adams and Associates, Inc. v. NLRB & AFT Local 4986 – Whether the employers became perfectly clear successors under Burns and whether the employers subsequently unlawfully refused to hire certain union members.

T-Mobile USA, Inc. v. NLRB & CWA – Whether certain workplace rules maintained by the employer are unlawful because they would reasonably be construed by employees as prohibiting protected activity.

Sixth Circuit

Pending:

Hardin County v. UAW Local 3047 – Holding that a county “Right-to-Work” ordinance is not preempted by the National Labor Relations Act.  On December 9, 2016, the plaintiff unions filed a petition for en banc rehearing. On January 24, 2017, the plaintiff unions filed a motion to vacate the court of appeals and district court decisions in light of Kentucky’s enactment of a statewide “Right-to-Work” law.

NLRB v. Alternative Entertainment, Inc. – Whether a mandatory arbitration agreement signed as a condition of employment that forbids collective claims violates the NLRA.  The AFL-CIO filed an amicus brief in support of the NLRB.

Eighth Circuit

Decided:

ConAgra Foods, Inc. v. NLRB & UFCW Local 75 – Over a dissent by Judge Kelly, the majority holds that an employee’s comment about placing cards in other employees’ lockers must be understood as solicitation because the comment was part of a course of conduct, which, taken altogether, was an effort to get the other employees to sign the cards.  The majority opinion defines solicitation as an effort to get someone else to do something and explains that solicitation can occur without the physical presentation of a card or disruption of work.  However, the majority adds that the mere mention of union cards would not, by itself, constitute solicitation.  Judge Kelly would not treat the pre-work and worktime encounters as part of a single solicitation effort.

Ninth Circuit

Pending: 

Hoot Winc, LLC v. NLRB – Whether a mandatory arbitration agreement signed as a condition of employment that forbids collective claims violates the NLRA.  The AFL-CIO represents the individual employee intervenors who were the charging parties before the Board.

Eleventh Circuit

Pending: 

Everglades College, Inc. v. NLRB – Whether a mandatory arbitration agreement signed as a condition of employment that forbids collective claims violates the NLRA.  The AFL-CIO represents the individual employee intervenor who was the charging party before the Board.

District Court

Northern District of Illinois

Decided:

IUOE Local 150 v. Village of Lincolnshire, Illinois (N.D. Ill.) – Holding that a county “Right-to-Work” ordinance is preempted by the National Labor Relations Act.

Western District of Oklahoma

National Association of Home Builders v. Hugler – Motion to intervene by the AFL-CIO and the United Steelworkers in this case brought by industry groups and companies challenging OSHA’s workplace injury and illness record-keeping rule.

Eastern District of Texas

Pending:

State of Nevada v. U.S. DOL (E.D. Tex.) – Motion to intervene by Texas AFL-CIO in support of the U.S. DOL in this consolidated case brought by states challenging DOL’s white-collar exemption overtime rule on constitutional and APA grounds and by a number of business associations challenging the rule on APA grounds.

Northern District of Texas

TEXO ABC/AGC, Inc. v. Perez (N.D. Tex.) – Motion to intervene by the AFL-CIO and the United Steelworkers in this case brought by industry groups and companies challenging OSHA’s workplace injury and illness recordkeeping rule.

NLRB

Decided:

E.I. Du Point de Nemours, Louisville Works – On remand from the D.C. Circuit, holding that discretionary acts made pursuant to a contractual management rights clause do not mature into a past practice privileging the employer to make unilateral changes after the contract expires.

King Soopers, Inc. – Holding that search-for-work and interim employment expenses will no longer be treated as an offset from interim earnings deducted from gross backpay, but will instead be calculated and paid separately from backpay without regard to whether the discriminatee received interim earnings.

Hyde Leadership Charter School – Brooklyn – Holding that the school is not a political subdivision and is, therefore, within the Board’s jurisdiction and declining to exercise the Board’s discretion to decline jurisdiction over the school.

Columbia University – Holding that student assistants who perform services at a university in connection with their studies are employees within the meaning of the NLRA.

Saint Xavier University and St. Xavier University Adjunct Faculty Organization – Applying Pacific Lutheran University to find that, with one exception, the part-time faculty do not play a role in creating or maintaining the school’s religious environment and are thus within the jurisdiction of the Board, but that part-time faculty within the Department of Religious Studies should be excluded from the bargaining unit.

Nexeo Solutions and Teamsters (Locals 705 and 70) – Holding that the employer was a “perfectly clear” successor and declining to overrule Spruce Up.

Miller & Anderson, Inc. – Holding that solely and jointly-employed employees may be included in the same unit without the consent of both employers.

Browning-Ferris Industries – Announcing a revised standard for determining if two entities are joint employers of the same employees.

UPMC – Finding that the employer’s email policy violated Section 8(a)(1) of the Act pursuant to the holding of Purple Communications.

Northwestern University – Declining to assert jurisdiction and dismissing the petition in case concerning whether grant-in-aid scholarship football players are “employees” within the meaning of the Act.

Purple Communications, Inc. – Overruling Register-Guard to hold that employee use of company e-mail for Section 7-protected communications on nonworking time is presumptively permitted where an employer allows employee access to its e-mail system.

Babcock & Wilcox Construction Co. – Modifying the Board’s standard for post-arbitral deferral under Spielberg and Olin by requiring the party urging deferral to show that the arbitrator was explicitly authorized to decide the unfair labor practice issue, that the arbitrator was presented with and considered the statutory issue (or was prevented from doing so by the party opposing deferral), and that Board law reasonably supports the arbitral award.

Pacific Lutheran University – The Board: (1) adopted a new jurisdictional test under Catholic Bishop requiring the college or university to demonstrate that it holds itself out as providing a religious educational environment and, if it meets this showing, to show specifically that it holds out the petitioned-for faculty members as performing a religious role; and (2) revised its standard under Yeshiva for determining whether faculty are managers by focusing on whether faculty participate in decision-making regarding academic programs, enrollment policies, and finances, as well as with regard to academic and personnel policies.

Mezonos Maven Bakery – On remand from the Second Circuit, the Board held that conditional reinstatement is an appropriate remedy in cases involving undocumented workers and ordered the employer to offer conditional reinstatement to the discriminatees in this case.

Pending:

Temple University Hospital – Whether the Board should exercise its discretion to decline jurisdiction over the hospital and, if the Board asserts jurisdiction, whether the Board should extend comity to a bargaining unit previously certified by the Pennsylvania Labor Relations Board.  The AFL-CIO filed an amicus brief in support of the Board exercising its jurisdiction and extending comity to the bargaining unit.

Manhattan College and Manhattan College Adjunct Faculty Union, NYSUT – Whether the Board has jurisdiction over a proposed unit of faculty members.  On February 4, 2015, the Board remanded the case to the Regional Director for reconsideration in light of the Board’s decision in Pacific Lutheran University.

SuperShuttle DFW – Whether drivers are independent contractors outside of the coverage of the NLRA or employees covered by the Act.

Kent Hospital – What is the proper standard for charging objecting fee payers for lobbying expenses.

OSHRC

Pending:

Integra Health Management, Inc. – Whether the general duty clause applies to the condition as alleged by the Secretary—the workplace violence hazard of employees being physically assaulted by the employer’s clients who are alleged to have a history of violent behavior.  If so, whether the Secretary established that the employer or its industry recognized the hazard and that a feasible and effective means of abatement existed to materially reduce the hazard.