Summary of NLRB Decisions for Week of April 4 - 8, 2016
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decisions
Premier Utility Services, LLC, a wholly owned subsidiary of USIC Locating Services, LLC (29-RC-159452 and 29-RC-159545; 363 NLRB No. 159) Hauppauge, NY, April 5, 2016.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision on Challenges and Objections and Notice of Hearing on the ground that it raised no substantial issues warranting review. The majority noted that, although they shared the dissent’s concern about the late delivery of many of the mail ballots, the Regional Director did not abuse his discretion in deciding not to count the ballots received after the ballot count. The majority found that the Regional Director’s decision was fully consistent with the Board’s established precedent permitting ballots received after the due date but before the count to be opened, while excluding ballots received after the ballot count.
Member Miscimarra, dissenting, would grant review of the Regional Director’s decision to exclude the late ballots. While agreeing that Board policy generally provides that ballots received after the count should not be opened, Member Miscimarra would find, consistent with his dissent in Classic Valet Parking, Inc., 363 NLRB No. 23 (2015), that “in an extremely unusual case . . . when our regular procedures have been deficient,” the Board’s normal rules must be balanced against the Board’s responsibility to assure that employees have been reasonably permitted to freely exercise their Section 7 rights. Here, strict application of the Board’s mail ballot rules results in 48 ballots that were postmarked before the end of the voting period—a majority of the 82 ballots mailed during the original voting period—not being counted.
Petitioner ‒ Communications Workers of America, Local 1101. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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ISS Facility Services, Inc. (28-CA-126024; 363 NLRB No. 160) Phoenix, AZ, April 7, 2016.
Applying D.R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran found that the Respondent violated Section 8(a)(1) by maintaining a Mutual Agreement to Arbitrate Claims (MAAC) that requires employees, as a condition of employment, to submit their employment-related legal claims to individual arbitration, thereby compelling them to waive their Section 7 right to pursue such claims through class or collective actions in all forums, whether arbitral or judicial. In addition, citing U-Haul of California, 347 NLRB 375 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir 2007), the majority found that the MAAC independently violates Section 8(a)(1) by interfering with employees’ rights to file charges with the Board. Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the majority rejected the Respondent’s argument that the MAAC is lawful because it contains an exemption permitting employees to file charges with administrative agencies, including with the Board.
For the reasons stated in his partial dissents in Murphy Oil and SolarCity Corp., Member Miscimarra dissented from the majority’s findings that the MAAC (1) violates Section 8(a)(1) because it waives the right to participate in class or collective actions regarding non-NLRB employment claims, and (2) unlawfully interferes with employees’ rights to file charges with the Board.
Charge filed by United Food and Commercial Workers Union, Local 99. Chairman Pearce and Members Miscimarra and McFerran participated.
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Service Employees International Union, Local 87 (Universal Building Maintenance) (20-CB-153693, et al.; 363 NLRB No. 161) San Francisco, CA, April 8, 2016.
The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(b)(1)(A) and (2) by preventing employees that it represented from obtaining employment with a new employer that was awarded a contract to perform services at the location where the employees were currently working. The Board left to compliance the method for computing the backpay owed to the employees who were prevented from obtaining employment.
Charges filed by individuals. Administrative Law Judge Joel P. Biblowitz issued his decision on December 22, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
NCR Corporation (07-RC-167851) Southfield, MI, April 6, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review. Petitioner – Local 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
Hendrickson Trucking Company (07-CA-086624 and 07-CA-095591) Jackson, MI, April 6, 2016. The Board remanded this proceeding to Administrative Law Judge Donna N. Dawson in light of the Respondent’s exceptions, which argued that Judge Dawson was appointed at a time when the Board lacked a quorum, and therefore her appointment was invalid and she had no lawful authority to act. The Board acknowledged that it lacked a valid quorum at the time it originally approved Judge Dawson’s appointment in April 2013, but noted that, on July 18, 2014, it ratified all administrative and personnel decisions made from January 4, 2012 to August 5, 2013, and expressly authorized her appointment. Nevertheless, the Board remanded this matter to Judge Dawson to consider anew the issues presented now that her appointment has been ratified by a fully confirmed five-member Board. Charge filed by Local 164, International Brotherhood of Teamsters (IBT). Chairman Pearce and Members Miscimarra and Hirozawa participated.
Nutritional Care, Inc. (12-CA-163339) San Juan, PR, April 6, 2016. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by Union Empleados Hospital Auxilio Mutuo. Chairman Pearce and Members Hirozawa and McFerran participated.
Time Warner Cable New York City, LLC (02-CA-126860) New York, NY, April 7, 2016. The Board denied the Respondent’s motion for summary judgment, finding that the Respondent had failed to demonstrate that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charge filed by Local Union No. 3 International Brotherhood of Electrical Workers, AFL-CIO. Chairman Pearce and Members Hirozawa and McFerran participated.
United States Postal Service (10-CA-156616) Raleigh, NC, April 8, 2016. The Board denied the Respondent’s motion to dismiss or for summary judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charge filed by National Postal Mail Handlers Union, Local 305. Chairman Pearce and Members Hirozawa and McFerran participated.
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Appellate Court Decisions
Lou's Transport, Inc., et al., Board Case No. 07-CA-102517 (reported at 361 NLRB No. 158) (6th Cir. decided April 6, 2016)
In a published opinion, the court enforced the Board’s order issued against this materials transporter located in South Rockwood, Michigan, for violating Section 8(a)(1) when it disciplined two truck drivers for discussing unsafe working conditions and later discharged one of them for complaining about safety concerns shared by the Employer’s 20 truck drivers.
The Employer subcontracted work from a quarry excavator for the removal or moving of dirt and clay so the excavator could extract limestone and sandstone. To accomplish this, the truck drivers were required to navigate unpaved, and often very slippery, rough roads made of clay, dirt, and stone that caused bald or flat tires sometimes in close proximity to drops as far as 200 feet. One day, two drivers were talking on the company radio about those unsafe conditions and the trouble they were having getting the Employer to replace unsafe tires. Unknown to them, this radio conversation was overheard by a sales manager and one company owner. The next day, both drivers received verbal warnings memorialized in writing. Afterward, one of those two drivers began displaying handwritten signs in his truck regarding the working conditions and other unrelated matters. After some time passed, the Employer learned he was displaying signs and found 16 signs in his truck. He was fired that same day. On those facts, the Board (Members Miscimarra, Johnson, and Schiffer) found the warnings and discharge unlawful.
On review, the court held that the Board’s finding of an unlawful discharge was supported by substantial evidence. In doing so, the court noted that the Board’s determination was two-fold. First, the Board concluded that the driver’s radio conversation was a protected, concerted activity and was a reason for his discharge. Second, the court explained, the Board concluded that he was discharged for a second, separate reason—the Employer’s belief that the driver was engaged in protected, concerted activity when he displayed the signs—but that the Board did not make a separate finding that displaying the signs was, in fact, protected, concerted activity. The court concluded that, “[b]ecause there is substantial evidence in the record supporting the Board’s conclusion that [the Employer] violated the Act with respect to the radio conversation, we need not reach the merits of the claim regarding [the driver]’s display of the signs.” The court summarily upheld the Board’s findings regarding the unlawful warnings, which the Employer did not challenge on review.
The court’s opinion is here.
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Administrative Law Judge Decisions
Kellogg Brown & Root LLC and Molycorp, Inc. (31-CA-140948 and 31-CA-145896; JD(SF)-16-16) Mountain Pass, CA and Houston, TX. Administrative Law Judge Jeffrey D. Wedekind issued his decision on April 4, 2016. Charges filed by an individual.
CPL (Linwood) LLC d/b/a Linwood Care Center and its Successor 201 New Road Operations, LLC d/b/a Linwood Care Center (04-CA-146362, et al.; JD-27-16) Linwood, NJ. Administrative Law Judge Arthur J. Amchan issued his decision on April 5, 2016. Charges filed by 1199 SEIU United Healthcare Workers East.
Murray American Energy, Inc., and The Marion County Coal Company, a Single Employer (06-CA-148388 and 06-CA-149117; JD-26-16) Metz, WV. Administrative Law Judge Thomas M. Randazzo issued his decision on April 5, 2016. Charges filed by United Mine Workers of America, District 31, Local 9909, AFL-CIO, CLC.
Burns Machinery Moving & Installation, Inc. and Nationwide Services LLC (09-CA-125050 and 09-CA-126160; JD-25-16) Louisville, KY. Administrative Law Judge Melissa M. Olivero issued her decision on April 6, 2016. Charges filed by International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO, Local Union No. 70.
Quicken Loans, Inc., In-House Realty, LLC, One Reverse Mortgage, LLC, Fathead, LLC, Rock Connections, LLC, Title Source, Inc. (07-CA-145794; JD-28-16) Detroit, MI. Administrative Law Judge David I. Goldman issued his decision on April 7, 2016. Charge filed by an individual.
Inter-Coast International Training, Inc., d/b/a “Intercoast Colleges” (31-CA-131805; JD-(SF)-17-16) Northridge, CA. Administrative Law Judge Lisa D. Thompson issued her decision on April 7, 2016. Charge filed by an individual.
Squires Lumber Company, Inc. (20-CA-160279, et al.; JD(SF)-18-16) Suisun City, CA. Administrative Law Judge Mary Miller Cracraft issued her decision on April 8, 2016. Charges filed by Carpenters Local 2236, United Brotherhood of Carpenters and Joiners of America.
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