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U.S. Supreme Court Rejects the Yard-Man Inference Vesting Lifetime Benefits for Union Retirees

In M&G Polymers USA, LLC v. Tackett, 1 the U.S. Supreme Court overturned three decades of precedent by the U.S. Court of Appeals for the Sixth Circuit, unanimously ruling that, when no specific provision in a collective-bargaining agreement (CBA) addresses the duration of retiree benefits, reviewing courts may not infer that the parties intended those benefits to vest for life. All nine justices agreed that courts must apply “ordinary principles of contract law” to determine the parties’ intent.

Labor Issues Staying at the Forefront of Political, Legal Discussions with NLRB, DOL Activity

As we have discussed over the past few weeks, the NLRB was busy as 2014 drew to a close. On December 11, 2014, the Board overruled its Register Guard decision in Purple Communications, establishing a new standard that requires employers to accommodate employees’ use of e-mail for protected concerted activity, subject only to “uniform and consistently enforced controls” that are “necessary to maintain production and discipline.” The very next day, the Board adopted a final version of its quickie election rules, which are scheduled to take effect on April 14, 2015, pending any legal challenges. These are not the only recent actions of interest to employers and labor practitioners. Amid post-election budget wrangling and the Board’s busy month, the Senate approved the nomination of a new Democratic appointee to the Board, and the Department of Labor (DOL) provided more guidance on persuader rules and union annual reports, potentially putting a final point on two long-running contentious issues.

President Nominates and Senate Confirms Democrat to Fill NLRB Vacancy

The Board is made up of five individuals appointed by the President with Senate consent, each for a five year term, with one Board Member’s term expiring each year.

Unions Are Poised To Make Gains In South's Auto Industry

Employers working for foreign-based automotive manufacturers in the 13 right-to-work states throughout the South should consider preparing for what may become a protracted battle over industry unionization. Volkswagen AG may have unwittingly shifted the paradigm last November when it became the first foreign-based automotive manufacturer to open its doors (in a manner of speaking) to organized labor at a domestic plant that is not jointly owned by an American-based manufacturer. A new policy at Volkswagen’s Chattanooga, Tennessee, plant — entitled the Community Organization Engagement policy — allows labor organizations to be involved in employee-related discussions if it can be established by an outside auditor that the labor organization has enrolled at least 15 percent of the plant’s workers in a relevant employee group.

Company violates NLRA by firing employee based solely on belief that concerted activity occurred.

Most employers are aware that under the National Labor Relations Act (NLRA), it is unlawful for an employer to prohibit employees from discussing wages among themselves, or to threaten an employee with discharge if they engage in such discussions.


In 2007, the National Labor Relations Board (NLRB) decided in Register Guard that employers could limit employee use of company email systems to business purposes so long as the limitation was applied consistently to all non-business communications. In other words, the policy could not be focused solely on prohibiting “protected concerted activity,” such as union organizing, or discussing hours, wages, and other terms and conditions of employment.

Preparing for Labor Board’s Quickie Election Rule

On December 12, 2014, the National Labor Relations Board issued the so-called Quickie Election rule, designed to shorten the timeline for NLRB elections and minimize pre-election litigation. The rule is set to take effect on April 14, 2015.

Ninth Circuit Finds State Trespass and Nuisance Laws Not Preempted by Secondary Boycott Law

In a recent decision involving the interplay between California law and federal labor law, the U.S. Court of Appeals for the Ninth Circuit ruled that state trespass and nuisance laws are not preempted by the federal secondary boycott law. Thus, the owner of a California mall will be permitted to sue a local union of the United Brotherhood of Carpenters to enjoin alleged violations of the mall's "time, place and manner" restrictions in front of a store that was being renovated by a nonunion contractor for one of the mall's tenants. The mall's complaint alleged that union members marched in a circle in front of the tenant's store, yelling, chanting, blowing whistles, damaging a construction barricade, hitting their picket signs against a mall railing, and cat-calling and making sexually provocative gestures toward female patrons. Retail Property Trust v. United Brotherhood of Carpenters, 768 F.3d 938 (9th Cir. 2014).

eLABORate: NLRB Rules that Employees May Use Work Email for Union Communications

In a divided opinion issued on December 11, 2014, the National Labor Relations Board decided that employees who have been given access to their employer’s email system in the course of their work are entitled to use the system on nonworking time to engage in statutorily protected discussions about their terms and conditions of employment. Purple Communications, Inc., 361 NLRB 126 (2014). In so doing, the NLRB overruled its divided 2007 decision, Register Guard, 351 NLRB 1110 (2007), to the extent that it held that employees had no statutory right to use their employer’s email system for Section 7 purposes.

NLRB Changes Standard for Deferral to Arbitration in Discrimination and Retaliation Cases

In a significant recent decision, the National Labor Relations Board (NLRB or Board) again abandoned long-standing, accepted Board precedent. In Babcock & Wilcox Construction Co., 361 NLRB No. 132 (Dec. 15, 2014), the Board changed its standard for deferral to arbitration awards, grievance/arbitration proceedings and pre-arbitration grievance settlements in cases where it is alleged that employees suffered retaliation or reprisal for engaging in union and/or protected concerted activity in violation of Section 8(a)(3) and (1) of the National Labor Relations Act (Act).1 Agreeing with the Board's General Counsel (GC) that the existing deferral standard for arbitration awards in the Board's 1984 decision in Olin Corp. "does not adequately balance the protection of employees' rights under the Act and the national policy of encouraging arbitration of disputes arising over the application or interpretation of a collective-bargaining agreement," the Board ruled that, going forward, employers urging deferral to an arbitration award have the burden of showing that the "statutory issue" was presented to the arbitrator, that the arbitrator considered the statutory issue and that Board law "reasonably permits" the award. The Board also changed the standards for pre-arbitration deferral and deferral to pre-arbitration settlements to be consistent with the change to the arbitration award standard.