SW Legal's Case Updates: Labor Law

SOUTH-WESTERN LEGAL STUDIES IN BUSINESS CASE UPDATES—LABOR LAW

SW Legal's Case Updates is a SW Legal Studies service to provide briefs of the latest state and federal court cases. Review the summaries and, for cases of interest, select the case brief. If you cannot find a case of interest, return to Topic Index .

*Title*	Summary
Restaurant May Require Servers to Pool Tips Briefed Case	Appeals court held that so long as an employer, such as at a restaurant, pays workers at least the minimum wage, it may require workers, such as servers, to contribute their tips to a common pool distributed to other employees. (April 2010)
Dispute as to Scope of Labor Arbitration Agreement Goes to Arbitration, Not to Court Briefed Case	Appeals court held that where an agreement between a union and an employer called for arbitration of disputes, any disputes, including ones over the coverage of the arbitration agreement itself, must go to arbitration, not to court, for resolution. (April 2009)
Union May Be Sued for Common Law Nuisance Briefed Case	New York high court held that a union could be sued for nuisance to enjoin it from making a racket when engaged in lawful distribution of union material. Such common law actions are not preempted by the National Labor Relations Act. (February 2009)
One Open Argument with Union Organizers Not Illegal Surveillance Briefed Case	Appeals court affirmed NLRB decision that a company did not engage in illegal surveillance of unionization efforts when a manager spoke to employees being offered union cards in an open setting. (February 2008)
Agency Fees May Include Costs of National Union Litigation Briefed Case	Appeals court held that it was proper for the agency fees paid by non-members of a union to include the cost of litigation incurred by the national union that concerned union representation matters, since such litigation relates to the benefits and procedures of all persons represented by a union. (January 2008)
Workers Not Paid for Time in Transit to Job Not Ordered by Employer Briefed Case	Appeals court held that an employer did not have to compensate workers for time spent in transit from their parking lot through security and a ride on a bus provided by security for work at an airport. Since the security was not under the employer’s control, it was not responsible for that time. (December 2007)
Minimum Wage Law Does Not Apply to Persons Providing Companionship Services for the Elderly Briefed Case	Supreme Court held that Congress intended to exclude persons providing companionship services for elderly person, whether employed directly by the person receiving care or employed by an agency that directs them to work for a particular elderly person. (August 2007)
Duties of RN Did Not Make Her a Supervisor Rather Than an Employee Briefed Case	Appeals court held that an RN, fired for circulating a petition protesting some work rules, was eligible for a hearing at the NLRB to see if her employer improperly punished her for engaging in protected activities. Her duties, which involved reporting problems of nursing assistants, did not rise to the level of a supervisory position. (Updated June 2007)
Bargaining Unit May Not Be Composed of One Person Briefed Case	Appeals court reversed an NLRB ruling. The court noted that the NLRA does not permit one-person bargaining units, so efforts to create a one-person bargaining unit are not protected activities and the employee in question may be fired. (Updated December 2006)
Intellectual Property Rights Subject to Bargaining by Public Employees Briefed Case	Kansas high court held that a university could bargain with its faculty union regarding rights to copyrights and patents created by faculty. Federal copyright and patent law do not prevent parties from bargaining over that issue. (Updated March 2006)
Decertification of Union Does Not Automatically End Employer Pension Obligations Briefed Case	Appeals court affirmed that when a union is decertified the pension plan defined in the collective bargaining agreement continues in force until the employer goes through a specific procedure under federal law to change the terms of the pension plan. (Updated February 2006)
Pharmacists Are Professionals Not Due Overtime Pay under FSLA Briefed Case	Appeals court held that pharmacists meet the definition of professionals who are exempt from the overtime pay requirement of the Fair Labor Standards Act. They have significant learning, use independent judgment, and are not subject to close supervision, which are characteristics of professionals. (Updated July 2005)
Employees Represented by Union May Not Be Forced to Wear Union Logo Briefed Case	Appeals court held that even though a collective bargaining agreement required employees to wear a union logo on their uniform, the requirement was in violation of the NLRA, as employees have the right not to engage in union activities. (Updated June 2005)
Worker Fired for Bad Attitude Not Protected by Union Status Briefed Case	Appeals court held that a worker who had a union leadership role received no protection from the NLRA for his union status after he was fired for calling his supervisor names. His insubordination and firing had nothing to do with union activity. (Updated June 2005)
Prescription for Marijuana Does Not Create Legal Excuse to Avoid Company Drug Policy Briefed Case	Court overturned the decision of a labor arbitrator who held that a company had to reinstate an employee who was fired for testing positive for marijuana. Marijuana use, whether by prescription or not, violated the collective bargaining agreement, which is to be followed. (Updated November 2004)
Union May Not Distribute Materials on Private Property without Permission Briefed Case	Appeals court, reversing the National Labor Relations Board, held that a union had no right to go on to the property of a grocery store to distribute its material to the store's customers as part of its union organizing effort. Store property is private property, so may not be used without permission. (Updated February 2004)
Workers Participating in Unfair Labor Practices Strike Must Be Reinstated Briefed Case	Appeals court held that an employer violated the rights of workers to choose a bargaining agent when the employer agreed to negotiate with a union not chosen by a majority of the workers. Since the strike that followed was an unfair labor practices strike, the workers had to be reinstated in their jobs when they wanted to return to work. (Updated July 2003)
Executive Order May Require Federal Contractors to Post Notice of Worker Rights Briefed Case	Appeals court upheld the right of the president to issue an executive order requiring certain federal contractors to post workplace notices informing employees that they may not be forced to join a union or to pay dues not related to union representation activities. (Updated May 2003)
Technological Obsolescence Does Not Allow a Firm to Dismiss Union Employees Briefed Case	Appeals court affirmed an order of the NLRB that a movie theater company reinstate film projectionists who had been fired because they are no longer needed due to computerized operation of movie theaters. The employer had a duty to bargain with the union about the elimination of the positions. (Updated April 2003)
Successor Employer Must Bargain with Unions Briefed Case	Appeals court held that a new company that was formed from existing companies, is a successor employer that must bargain with the unions that represented the employees when they worked for their previous employers. (Updated December 2002)
Employers May Control Who Distributes Literature on Company Property Briefed Case	Appeals court reversed an NLRB decision ordering an employer to allow unions to distribute union material on company property. The employer has the right to bar union materials from being distributed while allowing charities to distribute their materials. (Updated December 2002)
Claim of Sex Discrimination Must Be Resolved by Arbitration Under Collective Bargaining Agreement Briefed Case	The Alaska high court held that a claim of sex discrimination in employment, based on state law, was subject to grievance procedure and binding arbitration under terms of the collective bargaining agreement that covered the complaining party. (Updated July 2002)
Union Salts May Lie to Obtain Employment Briefed Case	Appeals court held that a salt, who was sent to seek employment in order to gain access to a workplace to assist efforts to unionize the workers, could not be discriminated against for his salting activities, nor could he be fired for giving false information on his job application that did not affect his qualifications to do the job. (Updated April 2002)
Concerted Effort to Refuse Voluntary Overtime Work Is Not a Strike Briefed Case	Appeals court held that it was not an illegal strike for a pilot's union to request all pilots not to bid on flying overtime for the company as a way to pressure the company to settle grievances about other matters. Such concerted action is not an illegal strike that would have violated the collective bargaining agreement. (Updated November 1, 2001)
Employer Bears Burden of Proving that Employees Are Supervisors Not Subject to Unionization Briefed Case	Supreme Court upheld an NLRB policy that states in the cases of dispute between an employer and a union about whether certain employees are supervisors, which means they cannot be represented by a union, the party advocating the supervisor designation status has the burden to prove that certain criteria of supervisor status are present. (Updated October 1, 2001)
Courts Can Overturn Labor Arbitrator's Decision in Rare Instances Briefed Case	The Supreme Court, reversing an appeals court, held that the decision of a labor arbitrator is to stand if errors were made, unless the arbitrator commits a serious error. In such instances, the courts should not resolve the case on its merits, but return the matter for further arbitration proceedings. (Updated September 1, 2001)
Laid-Off Workers Unlikely to Return to Work May Not Vote in Union Representation Election Briefed Case	Appeals court reversed NLRB holding that all workers who had been laid off by an employer two months before a union representation election could vote in the election. Unless laid-off workers have a reasonable expectation of returning to work, which did not exist here, they do not have the right to vote in an election. (Updated June 1, 2001)
Employer Must Pay Back Wages to Union Organizer It Refused to Hire Due to Union Status Briefed Case	Appeals court upheld NLRB decision against an employer who refused to hire a worker who let the employer know that he was a union organizer who would attempt to organize the workers. The employer unfairly discriminated against the worker and must pay him back wages despite his being on the union payroll at the time. (Updated March 1, 2001)
Employer May Not Unilaterally Change Labor Policies During Collective Bargaining Briefed Case	Appeals court affirmed NLRB bad faith finding against an employer who changed a labor policy during collective bargaining proceedings to one less favorable to its employees than its previous policy. Such changes in labor policy are bad faith unless a complete impasse in bargaining has occurred. (Updated February 1, 2001)
NLRB May Order Wage Increase As Remedy for Unfair Labor Practice Briefed Case	Appeals court upheld various company tactics to be unfair labor practices, including not granting the usual across-the-board pay raise to employees and blaming it on the union attempting to organize the workers. The NLRB could order the company to grant the wage increase if economic conditions would have normally warranted it. (Updated January 1, 2001)
Court May Issue Injunction in Labor Dispute When Non-Arbitration Contract Issue at Stake Briefed Case	Appeals court upheld an injunction issued by a district court against the plans of a company to restructure their operations without proper notice to the union as required by the collective bargaining agreement. Since that part of the agreement was not subject to arbitration, it could be subject to court action. (Updated December 1, 2000)
Mixed Unions Are Valid Representation Agents Once Recognized by Employers Briefed Case	Appeals court reversed the ruling of the NLRB that a mixed union, one that admitted security guards and non-guards into membership, was under the NLRA. While the NLRB may not certify such unions, an employer may voluntarily recognize them, at which point they are due NLRA protection. (Updated November 1, 2000)
Court May Enforce Arbitrator Decision Prior to NLRB Ruling Briefed Case	Appeals court upheld the decision of a district court to enforce the ruling of an arbitrator who decided that an issue he held was covered by terms of a collective bargaining agreement. The fact that the employer also appealed to the NLRB does not mean that the courts will not enforce the decision of the arbitrator. (Updated March 1, 2000)
Public Policy About Drugs Overrides Collective Bargaining Agreement Terms Briefed Case	New Hampshire high court held that an employer's adoption of a zero tolerance drug policy, which resulted in dismissal of two public transit employees who tested positive for drug use, was favored by public policy and allowed the employer to override the terms of the collective bargaining agreement regarding discipline in such instances. (Updated February 1, 2000)
Deception in Polling of Employees Before Election May Be Coercion Briefed Case	Appeals court reversed decision of NLRB to ignore union materials issued right before a representation election. The materials claimed that a large majority of the employees supported the union when the vote showed that not to be true. Such misrepresentation requires the NLRB to investigate the matter, not ignore it and certify the union. (Updated February 1, 2000)
No Unilateral Changes of Compensation Package by Employer During Negotiations with Union Briefed Case	An appeals court upheld decision of NLRB that an employer violated the NLRA by unilaterally implementing certain changes to their employees' compensation package while negotiations with the union were on going. (Updated September 1, 1999)
LPNs Are Not Supervisors for Purposes of Collective Bargaining Briefed Case	Appeals court upheld decision of NLRB that LPNs at a nursing home were employees who could engage in collective bargaining, not supervisory personnel, as are RNs. Their supervision over nursing assistants was rather routine and did not involve susbstantive decisions expected of supervisors. (Updated June 1, 1999)
Undocumented Aliens Could Participate in Union Representation Election Briefed Case	Appeals court upheld the determination of the NLRB to accept the results of a union representation election, in favor of the union, that was challenged by employer because the work status of some workers who voted had not been determined and they were subject to dismissal if they did not have proper documentation. (Updated June 1, 1999)
Appeals Court Will Not Review Arbitrators' Decision on Drug Testing Find Briefed Case	Court of appeals upheld arbitrators' decision that railroad properly fired employee who did not comply with the terms of a drug test program allowed by its collective bargaining agreement. Only in rare instances, such as fraud, will a court review arbitrators' decisions. (Updated May 1, 1999)
Union Cannot Deny Non-Union, Represented Workers' Right to Internal Appeal Briefed Case	Appeals court upheld NLRB determination that a union engaged in unfair labor practice by denying a represented worker, who was not a union member, the right to appeal an employment decision under the internal union appeal process. (Updated May 1, 1999)
Statutory Claim for Damages Subject to Arbitration Briefed Case	Appeals court held that employer's possible claim for damages for illegal secondary boycott is subject to arbitration. The employer's bargaining agreement calls for arbitration of all disputes. That will be upheld unless there is a clear waiver of arbitration in certain instances. (Updated April 1, 1999)
Indian Tribes May Adopt Right-to-Work Provisions Briefed Case	The San Juan Pueblo Indians adopted a right-to-work ordinance to apply on Tribal lands, stating that union membership could not be compulsory. The district court rejected the NLRB position that Indian Tribes may not adopt right-to-work laws. (Updated April 1, 1999)
Walkout By Workers to Protest Firing of Supervisor Not Protected Activity Briefed Case	Appeals court reversed finding of NLRB that a walkout by most workers at a restaurant in protest of a popular manager being fired was a protected concerted activity. Dismissal of supervisory personnel is almost always a managerial decision not subject to concerted activity by employees. (Updated April 1, 1999)
Union Agreement That Used Statutory Language Upheld Briefed Case	Employee claim of bad faith by union for failing to inform her that agency fees would meet her legal obligation, rather than union membership and dues, rejected. The union security agreement used the language of the NLRA. Union did not have a duty to explain how the statute works in practice. (Updated January 1, 1999)
Claims of FLSA Violations May Be Litigated or Arbitrated Briefed Case	Appeals court upheld right of employees and unions to choose to litigate or arbitrate alleged violations by employer of rights protected by FLSA. Union and employees were not restricted to arbitration only. (Updated January 1, 1999)
NLRB May Not Arbitrarily Change Definition of Acceptable Bargaining Units Briefed Case	NLRB's reversal of long-standing policy of requiring "wall-to-wall" bargaining units within lumber operations, without explanation, violates reasoned decision-making required by APA. (Updated 10-19-98)
Union Shop Provision Ordered Stricken from Collective Bargaining Agreement Briefed Case	Bargaining agreement contained mandatory union membership as condition of employment. NLRB holding that non-enforcement of the clause was sufficient was rejected by appeals court which ordered the union shop provision stricken and employees to be informed of rights under NLRB. (Updated 10-19-98)
Union Plant Must Stay Open; May Not Move South Briefed Case	Appeals court upheld NLRB request for injunctive relief to require Pennsylvania manufacturer to stay in operation rather than move to new plant in Georgia, pending appeal of decision by NLRB that plant was guilty of unfair labor practices during collective bargaining talks. (Updated 10-5-98)
NLRB "Good-Faith Reasonable Doubt" Standard of Continuing Union Support Upheld Briefed Case	New business owner heard from several employees that union lacked support. Employer called for an election which union lost. NLRB decision to overturn the election violated the Board's own "good-faith reasonable doubt" standard whether calling for a polling of employees was justified. (Updated 4-6-98)
Don't Tell Us If You Are a Union Organizer Briefed Case	Employer's policy of refusing to consider employment applications on which applicants wrote "volunteer union organizer" upheld as not in violation of NLRA since information was written in violation of application instructions and was not effort to communicate to other workers. (Updated 12-29-97)
No Pain, No Pay, No Unemployment Comp Briefed Case	Newly hired police officer made no effort to get into shape to pass physical test required of all officers. Knowing he would be dismissed if he did not get into shape, he made no effort to do so. Unemployment compensation is not due former employees who engage in such misconduct. (Updated 11-14-97)
No Timely Appeal Means No Appeal of NLRB Decision Briefed Case	Hotel protested decision of NLRB regional director to certify a union to represent one group of employees. Hotel failed to appeal the decision to the NLRB so that later, when the union won the election, the hotel could not appeal to the courts to review the proper certification of the union. When NLRB appeal procedures are not followed, the right of appeal to the courts is lost. (Updated 10-3-97)