Summary of NLRB Decisions for Week of August 11 - 15, 2014
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
ManorCare of Kingston PA, LLC (04-CA-129388; 361 NLRB No. 17) Kingston, PA, August 11, 2014.
The Board granted the General Counsel’s motion for summary judgment in this refusal-to-bargain, test-of-certification case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the union was certified as the bargaining representative.
In so finding, the Board noted that the Respondent argued for the first time in its Response to Notice to Show Cause that the Board lacked a quorum at the time it approved the appointment of Dennis Walsh as Regional Director for Region 4 on March 10, 2013. See NLRB v. Noel Canning, a Division of the Noel Corp., 134 S.Ct. 2550 (2014). The Respondent further argued that the appointment of Regional Director Walsh was null and void, and that the Board’s subsequent certification of the Union was invalid. In dismissing these arguments, the Board observed that the Respondent offered no justification for its failure to raise these issues in a timely fashion in the underlying representation proceeding, further noting that the Respondent not only failed to raise a timely challenge to the authority of the Regional Director, it entered into a Stipulated Election Agreement in which it waived the right to a hearing and expressly agreed to the conduct of a secret ballot election. Under these circumstances, the Board rejected the Respondent’s arguments as untimely, and found that the Respondent is estopped from attacking the propriety of an election to which it has expressly agreed. Finally, the Board found that even assuming that the Respondent’s challenge to the Regional Director’s authority was not otherwise barred, this argument was without merit. The Board observed that on July 18, 2014, in an abundance of caution and with a full complement of five Members, the Board ratified nunc pro tunc and expressly authorized the selection of Dennis Walsh as Regional Director of Region 4, and that in a further abundance of caution, on July 30, 2014, Regional Director Walsh affirmed and ratified any and all actions taken by him or on his behalf during the period of March 10, 2013 to July 18, 2014.
Member Johnson noted that he dissented from the majority’s decision to reverse the hearing officer and to dismiss all objections in the underlying case. ManorCare of Kingston PA, LLC, 360 NLRB No. 93 at slip. op. 2 fn.4 (2014). However, he agreed that the Respondent did not raise any issue that was properly litigable in this current proceeding.
Charge filed by Laborers International Union of North America Local 1310. Chairman Pearce and Members Johnson and Schiffer participated.
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Fresh & Easy Neighborhood Market, Inc. (28-CA-064411; 361 NLRB No. 12) Phoenix, AZ, August 11, 2014.
A full Board majority consisting of Chairman Pearce and Members Hirozawa and Schiffer reversed the Administrative Law Judge and found that an employee was engaged in protected concerted activity for the purpose of mutual aid or protection when she solicited three coworkers to sign a piece of paper onto which she had copied a message displayed on a whiteboard in the employee break room to attest to the contents of that message in connection with the employee’s complaint to management about the message’s sexually offensive nature. In so doing, the majority held the Board’s decision in Holling Press, Inc. should be overruled to the extent that it would require a finding that the employee’s activity was not for mutual aid and protection. On the circumstances of the case, however, the Board agreed with the Administrative Law Judge that the Respondent did not violate Section 8(a)(1) when it questioned the employee about why she obtained witness statements from her coworkers and instructed her not to obtain additional statements.
Member Miscimarra dissented from the majority’s conclusion that the employees involved in this case were engaged in protected concerted activity. Accordingly, he dissented from the majority’s decision to overrule Holling Press. Member Johnson, concurring in part and dissenting in part, joined Member Miscimarra in dissenting from the majority’s holding that an employee seeking the assistance or support of his or her coworkers in raising a sexual harassment complaint is always acting for the purpose of mutual aid or protection.
Charge filed by an individual. Administrative Law Judge Joel P. Bibliowitz issued his decision on April 23, 2012. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and Schiffer participated.
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Philips Electronics North America Corporation (26-CA-085613; 361 NLRB No. 16) Memphis, TN, August 14, 2014.
A unanimous panel of the Board adopted the Administrative Law Judge’s finding that the Respondent did not violate Section 8(a)(1) by discharging an employee. A Board panel majority consisting of Members Johnson and Schiffer reversed the Administrative Law Judge and found that the Respondent violated Section 8(a)(1) by maintaining a rule that discipline is confidential and prohibiting its employees from discussing or sharing their discipline with their coworkers. Member Miscimarra, dissenting in part, would have found that the rule was not unlawful.
Charge filed by an individual. Administrative Law Judge Margaret G. Brakebusch issued her decision on June 13, 2013. Members Miscimarra, Johnson, and Schiffer participated.
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Mike-Sell’s Potato Chip Co. (09-CA-072637; 361 NLRB No. 23) Dayton, OH, August 15, 2014.
The Board adopted, for the reasons stated in the vacated Decision and Order reported at 359 NLRB No. 86 (2013), the Administrative Law Judge’s finding that the Respondent violated the Act by making midterm modifications to the health and welfare provisions of its collective-bargaining agreement with the union. The Board ordered the Respondent to make whole the employees for all losses suffered as a result of the unlawful modifications, including depositing into the employees’ health saving accounts the amounts it failed to contribute. In a concurring footnote, Member Johnson explained his agreement with the finding that the Respondent unlawfully made midterm modifications to the health and welfare terms of the collective-bargaining agreement, and also explained his adoption of the judge’s credibility findings.
Charge filed by Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 57, AFL-CIO-CLC. Administrative Law Judge Paul Bogas issued his decision on July 3, 2012. Chairman Pearce and Members Hirozawa and Johnson participated.
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Tekweld Solutions, Inc. (29-RC-099621; 361 NLRB No. 18) Farmingdale, NY, August 15, 2014.
Decision on Review and Direction adopting the Acting Regional Director’s report and recommendations on determinative challenges. The Board concluded that the Acting Regional Director had not abused his discretion by adhering to the parties’ Stipulated Election Agreement, which provided for a voting eligibility date of March 8, 2013, even though the election—originally scheduled for April 16—was postponed until November 19. The Employer argued that 23 employees hired after the eligibility date should have been allowed to vote, and that the Acting Regional Director was obligated to revise, on his own initiative, the eligibility date to reflect the revised election date. In rejecting this argument, the Board emphasized that (1) the Acting Regional Director had followed the procedures set forth in the Board’s Casehandling Manual, which does not indicate that a Region should, of its own accord, change a stipulated eligibility date for an initial election delayed due to blocking charges; (2) the cases relied on by the Employer did not concern initial elections, and contained much longer periods between the eligibility date and election (over 2 years) than in the present case (8 months); and (3) the Employer had failed to file any objections and had not questioned the adequacy of the eligibility list until 8 days after the election, despite various opportunities to have done so. Dissenting in part, Member Miscimarra would have ordered that the votes be counted, but stated that he believed the proper outcome in this extremely unusual case should be to establish a new eligibility date and direct a new election. Petitioner—Warehouse Production Sales and Allied Services Employees Union, Local 811. Members Miscimarra, Hirozawa, and Johnson participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Rock River Academy and Residential Center (25-RC-129277) Rockford, IL, August 13, 2014. The Board denied the Employer’s request for review as not raising any substantial issues regarding whether the Regional Director erred in directing an election in a unit of non-professionals at a residential facility and school for young females with emotional and behavioral issues. The Order also denied, on the merits, the Employer’s appeal of the Regional Director’s determination of the election arrangements. Petitioner—AFSCME COUNCIL 31, AFL-CIO. Members Miscimarra, Hirozawa, and Johnson participated.
Electric Boat Corporation (01-RC-124746) Groton, CT, August 14, 2014. The Board granted the Intervenor Metal Trades Council of New London County, affiliated with AFL-CIO’s Request for Review of the Regional Director’s Decision and Direction of Election as raising substantial issues warranting review of the Regional Director’s decision to permit severance of the petitioned-for unit of carpenters from the broader production and maintenance unit represented by the Intervenor. Petitioner-United Brotherhood of Carpenters and Joiners of America, Local 1302. Members Miscimarra, Hirozawa, and Johnson participated.
C Cases
Laborers International Union of North America, Local 1177 (15-CB-005974) Baton Rouge, LA, August 11, 2014. Order correcting the July 28, 2014 unpublished Board order.
Wellington Industries, Inc. (07-CA-091271) Belleville, MI, August 13, 2014. The Board denied the Respondent’s motion for partial reconsideration of the Board’s Decision and Order reported at 360 NLRB No. 14 (2013). The Board found that the Respondent did not identify any material error or demonstrate extraordinary circumstances warranting reconsideration. Chairman Pearce and Members Miscimarra and Johnson participated.
Ace Heating and Air Conditioning Co., Inc. (08-RC-127213) Cleveland, OH, August 14, 2014. No exceptions having been filed to the hearing officer’s sustaining of the challenge to a ballot on the ground that the voter was a statutory supervisor, the Board adopted the hearing officer’s recommendation. In light of the pendency of objections to the election held May 21, 2014, the Board remanded the case to the Region for further proceedings. Petitioner – International Association of Sheet Metal, Air, Rail and Transportation Workers.
3815 9th Avenue Meat and Produce Corp., d/b/a Compare Supermarket (02-CA-067534, et al.) New York, NY, August 15, 2014. No exceptions having been filed to the Administrative Law Judge’s findings that the Respondent had engaged in certain unfair labor practices, the Board adopted her findings and conclusions and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charge filed by United Food and Commercial Workers Union, Local 342. Administrative Law Judge Lauren Esposito issued her decision on July 20, 2012.
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Appellate Court Decisions
Europa Auto Imports, Inc., d/b/a Mercedes-Benz of San Diego. Board Case No. 21-CA-063725 (reported at 357 NLRB No. 114) (D.C. Cir. decided August 11, 2014).
In an unpublished per curiam judgment, the D.C. Circuit lifted its prior order placing the case in abeyance pending resolution of NLRB v. Noel Canning, 134 S. Ct. 2550 (June 26, 2014), denied the petition for review, and enforced the Board’s order in this technical 8(a)(5) case.
The employer operates a car dealership and repair shop in San Diego, California. After a hearing on the eligibility of three employees to vote in an upcoming election, the Acting Regional Director issued a decision finding two employees ineligible for membership in the auto technicians unit and finding the third was a statutory supervisor. On review, the Board affirmed the ineligibility of the two non-unit employees, but permitted the alleged statutory supervisor to vote under challenge. In August 2010, an election was held and a majority of eligible employees, 24 to 19, voted to be represented by Machinists Automotive Trades District Lodge 190, AFL-CIO. The employer objected, contending that the election agent had engaged in misconduct by not permitting the two employees to cast ballots because, it claimed, they were eligible to vote. After an administrative law judge recommended that the objection be overruled, the Board found that the agent had adhered to established election procedures, that raising voter eligibility issues after the election was untimely, and certified the union. To test the certification, the employer refused to bargain or provide requested information. In November 2011, the Board (Chairman Pearce and Members Becker and Hayes) found that those refusals violated Section 8(a)(5).
The Court held that the Board validly certified the Union. Specifically, it agreed with the Board that the employer’s post-election challenge to voter eligibility was untimely, and thus the Board had acted within it discretion to dismiss those claims. The Court also held that the Board’s finding of supervisory status was based on substantial evidence, and granted summary enforcement of the uncontested information request violation.
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Administrative Law Judge Decisions
Globe Wholesale Tobacco Distributors Inc., d/b/a Globe Wholesale Co. (29-CA-093481; JD(NY)-34-14) Brooklyn, NY. Administrative Law Judge Raymond P. Green issued his decision on August 11, 2014. Charge filed by an individual.
Lincoln Lutheran of Racine (30-CA-111099; JD-49-14) Racine, WI. Administrative Law Judge Paul Bogas issued his decision on August 11, 2014. Charge filed by Service Employees International Union Healthcare Wisconsin, SEIU-HCWI.
Fox Television Stations, Inc. (31-CA-109881; JD(SF)-40-14) Los Angeles, CA. Administrative Law Judge Gerald M. Etchingham issued his decision on August 12, 2014. Charge filed by National Ass’n of Broadcast Employees & Technicians, The Broadcasting & Cable Television Workers Sector of the Communications Workers of America, AFL-CIO, Local 53.
United States Postal Service (05-CA-119507; JD-48-14) Washington, DC. Administrative Law Judge Eric M. Fine issued his decision on August 13, 2014. Charge filed by American Postal Workers Union.
International Longshore and Warehouse Union, AFL-CIO and International Longshore and Warehouse Union, Local 4, AFL-CIO (19-CC-092816, et al.; JD(SF)-41-14) Vancouver, WA. Administrative Law Judge William L. Schmidt issued his decision on August 13, 2014. Charge filed by International Brotherhood of Electrical Workers, Local 48, AFL-CIO.
Oakland Physicians Medical Center, LLC d/b/a Doctors’ Hospital of Michigan (07-CA-120931; JD-50-14) Detroit, MI. Administrative Law Judge Christine E. Dibble issued her decision on August 15, 2014. Charges filed by Michigan Association of Police (MAP).
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