Summary of NLRB Decisions for Week of August 25 - 29, 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
Community Health Services, Inc. d/b/a Mimbres Memorial Hospital (28-CA-016762, et al.; 361 NLRB No. 25) Deming, NM, August 25, 2014.
On remand from the United States Court of Appeals for the District of Columbia Circuit, the Board held that important statutory policies strongly support a practice of declining to deduct interim earnings when applying the Ogle Protection Service backpay formula in cases involving economic loss but no cessation of employment. The D.C. Circuit had remanded the case to the Board for a determination of and explanation for whether the Board should deduct actual interim earnings generated in unfair labor practice cases not involving an unlawful discharge or other cessation of employment. Guided by the Supreme Court’s “healthy policy of promoting production and employment,” the Board concluded that employees who voluntarily take on interim work at a second employer to offset hours unlawfully taken away by the principal employer should be permitted to keep the proceeds of this extra effort even to the extent those proceeds exceed the hours typically available at the principal employer. To conclude otherwise, the Board determined, would reward wrongdoing employers for unlawful conduct, and may create an inappropriate incentive for such employers to delay rescission of unlawful hours reductions in order to reduce their ultimate backpay obligations. Finally, the Board concluded that, to the extent Board decisional language has suggested that deducting interim earnings is appropriate absent a cessation of employment, such language was inadvertent and erroneous. The Board has maintained a longstanding policy of declining to deduct interim earnings in cases involving no job loss. The Board issued its original decision in this case on February 28, 2011. Chairman Pearce and Members Johnson and Schiffer participated on remand.
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Pallet Companies, Inc., a subsidiary of IFCO Systems, N.A., Inc. (04-CA-128224 and 128228; 361 NLRB No. 33) Burlington, NJ, August 27, 2014.
The Board granted the General Counsel’s motion for summary judgment in this unfair labor practice 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. The Board further found that no factual issues warranting a hearing were raised with respect to the Respondent’s refusal to provide requested information to the Union.
In granting the motion, the Board rejected the Respondent’s arguments that because the Board lacked a quorum under NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), at the time it approved the appointment of Dennis Walsh as Regional Director for Region 4 on March 10, 2013, Regional Director Walsh was without authority to issue the consolidated complaint in this proceeding, and that the Respondent was entitled to summary judgment as a matter of law. The Board noted that the authority of the General Counsel to investigate unfair labor practice charges and to issue and prosecute unfair labor practice complaints, is derived directly from the language of the NLRA, not from any “power delegated” by the Board, and that therefore the presence or absence of a valid Board quorum has no bearing on the General Counsel’s prosecutorial authority in this matter. The Board also noted that Agency staff engaged in the investigation and prosecution of unfair labor practices are directly accountable to the General Counsel, and that when a Regional Director or other designated Board Agent issues a complaint, he acts for, and with authority delegated by, the General Counsel, and that the consolidated complaint was issued in the name of the General Counsel and with the General Counsel’s authority.
The Board further stated that to the extent that the Respondent questioned the technical aspects of Regional Director Walsh’s appointment at a time when the Board lacked a quorum, it should be noted that the Board previously issued an order contingently delegating certain authorities to other NLRB officials, including the General Counsel, and that therefore, in the absence of a Board quorum, the General Counsel was authorized to appoint Walsh as Regional Director consistent with the contingent delegation.
Finally, the Board noted that 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 Regional Director Walsh affirmed and ratified any and all actions taken by him or on his behalf prior to the Board’ affirmation of his appointment.
Charge filed by United Food & Commercial Workers Union, Local 1360. Chairman Pearce and Members Johnson and Schiffer participated.
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Newman Livestock-11, Inc. (32-CA-084178, et al.; 361 NLRB No. 32) Newman, CA, August 28, 2014.
The Board found that the Respondent met the Board’s non-retail employer criteria for asserting its jurisdiction and adopted the Administrative Law Judge’s finding that the Respondent unlawfully discharged 15 employees in retaliation for exercising their Section 7 right to strike. Although not necessary to its finding of jurisdiction, the Board observed that this finding was confirmed by additional evidence submitted by the Respondent to the judge after the record was closed. (Although no party moved to re-open the record to admit this evidence, the Board found that that no due process rights were impaired in view of the judge’s implicit admission of the evidence and both parties’ reliance on it.) The Board also found, contrary to the Administrative Law Judge’s suggestion, that the discriminatees were entitled to a complete remedy of reinstatement, backpay, and notice. Finally, the Board found it appropriate under the circumstances to require mailing of the notice, regardless of whether the Respondent remained in business. Administrative Law Judge Gerald A. Wacknov issued his decision on November 26, 2013. Members Miscimarra, Hirozawa, and Schiffer participated.
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Onyx Management Group LLC (29-CA-130471; 361 NLRB No. 30) Jericho, NY, August 28, 2014.
The Board granted the General Counsel’s motion for summary judgment in this unfair labor practice 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. Charge filed by International Union of Operating Engineers, Local 30, AFL-CIO. Chairman Pearce and Members Johnson and Schiffer participated.
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Securitas Critical Infrastructure Services, Inc. (18-CA-130606; 361 NLRB No. 38) Monticello, MN, August 29, 2014.
The Board granted the General Counsel’s motion for summary judgment in this unfair labor practice 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. Charge filed by United Security Professionals, Local 2. Members Miscimarra, Hirozawa, and Johnson participated.
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Hospital of Barstow, Inc. d/b/a Barstow Community Hospital (31-CA-090049 and 096140; 361 NLRB No. 34) Barstow, CA, August 29, 2014.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the judge’s findings that the Respondent violated Section 8(a)(5) and (1) by refusing to offer proposals or counterproposals until the Union offered a full contract proposal and by prematurely declaring impasse and refusing to bargain unless the Union directed employees to stop using a Union-provided “Assignment Despite Objection” form. Member Johnson joined his colleagues in finding the Respondent’s refusal to bargain unless the Union directed employees to stop using the form unlawful, but disagreed that the Respondent’s request for a full set of proposals from the Union during bargaining itself was an unlawful refusal to bargain. In addition, the Board unanimously found that the Respondent violated 8(a)(5) and (1) by unilaterally replacing its onsite, instructor-led classroom training with the HeartCode online training program, which capped the number of training hours for which employees would be paid. The same Board panel majority affirmed the judge’s recommendation for a full 1-year extension of the certification year, and also ordered reimbursement of the Union’s negotiating expenses. Member Johnson, dissenting, found that an award of negotiation expenses is not warranted and he would only extend the certification year by 6 months. Charges filed by California Nurses Association/National Nurses Organizing Committee (CNA/NNOC), AFL–CIO. Administrative Law Judge Jay R. Pollack issued his decision on September 9, 2013. Chairman Pearce and Members Hirozawa and Johnson participated.
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Galaxy Towers Condominium Association (22-CA-030064; 361 NLRB No. 36) Guttenberg, NJ, August 29, 2014.
A Board panel majority (Members Johnson and Schiffer) adopted the Administrative Law Judge’s finding that the Respondent did not violate Section 8(a)(5) and (1) by subcontracting the work of all bargaining unit employees except its maintenance employees because the Union had previously ratified a memorandum of agreement that immediately implemented all of the parties’ tentative agreements reached up to that point, including one that granted the Respondent the unilateral right to subcontract bargaining unit work. Member Hirozawa, dissenting, would find that the Respondent violated Section 8(a)(5) and (1) by unilaterally subcontracting bargaining unit work because the Respondent failed to show that the parties intended to implement their tentative agreement on the Respondent’s unilateral right to subcontract bargaining unit work prior to reaching a full and final agreement.
A different panel majority (Members Hirozawa and Schiffer) adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with the Respondent’s Request for Proposals sent to prospective subcontractors and the bids it received in response, refusing to bargain for a new contract for its maintenance employees, and prematurely declaring impasse and then unilaterally implementing new terms and conditions of employment. Member Johnson, dissenting, would find that the Respondent did not violate Section 8(a)(5) and (1) because the requested information was only requested to bargain about subcontracting itself, which the Union had waived its right to bargain over, the Respondent was neither unwilling nor refused to bargain about the maintenance employees, the finding of an unlawful declaration of impasse is unnecessary because the Union had clearly and unmistakably waived its right to bargain over the subcontracting decision, and there is no evidence that the Respondent implemented any terms and conditions of its last, best, and final offer to the maintenance employees.
Charge filed by Local 124, Recycling, Airport, Industrial & Service Employees Union. Administrative Law Judge Steven Davis issued his decision on September 25, 2012. Members Hirozawa, Johnson, and Schiffer participated.
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Security Walls, LLC (13-CA-114946; 361 NLRB No. 29) Argonne, IL, August 29, 2014.
The Board granted the General Counsel’s motion for summary judgment as to the complaint allegation that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the Union with requested information that was relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s unit employees.
The Board found that neither the General Counsel nor the Respondent established the absence of a genuine issue of material fact, or that either party was entitled to judgment as a matter of law, as to the complaint allegations that the Respondent violated Section 8(a)(5) and (1) when it exercised its discretion to unilaterally suspend and then discharge a unit employee without providing the Union with prior notice and an opportunity to bargain about the discipline. The Board accordingly found that summary judgment was not appropriate as to those allegations, and remanded the proceeding to the Regional Director for further appropriate action.
Charge filed by International Union, Security, Police and Fire Professionals of America (SPFPA) and its Local No. 554. Chairman Pearce and Members Johnson and Schiffer participated.
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Fresh & Green’s of Washington, D.C., LLC (05-CA-065595; 361 NLRB No. 35) Washington, D.C., August 29, 2014.
In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered this case de novo. The Board adopted the administrative law judge’s recommended Decision and Order to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 359 NLRB No. 145 (2013), which was incorporated by reference. In that Decision, the Board affirmed the judge’s finding that the respondent violated Section 8(a)(3) of the Act by discharging Maria Yliquin, but reversed the judge and found that the respondent also violated Section 8(a)(3) by discharging Esam Amireh. Contrary to the judge, the Board found that Amireh engaged in protected union activity when he engaged a union representative to assist him in pursuing a scheduling complaint with management. Also contrary to the judge, the Board found that circumstantial evidence supported the inference that the respondent bore animus toward Amireh’s protected activity. And, the Board found that the reasons given for Amireh’s discharge were pretextual.
In rejecting the respondent’s argument that it harbored no animus against union steward Yliquin’s protected activity given that it did not discharge another union steward, the Board declined to rely on the judge’s inference that the other union steward “may not have been as aggressive in that position as Yliquin.” Rather, the Board relied on the established principle that “a discriminatory motive, otherwise established, is not disproved by an employer’s proof that it did not take similar actions against all union adherents.” Member Johnson explained his rationale for concluding that the respondent had adequate knowledge of Amireh’s protected activity to justify reversing the judge and finding the discharge violation. Member Johnson also noted his view that “consideration of the same-actor inference should not be foreclosed in the Board’s traditional discrimination analysis.”
The charge was filed on September 28, 2011, by United Food & Commercial Workers, Local 400. Administrative Law Judge Joel P. Biblowitz issued his decision on May 8, 2012. Chairman Pearce and Members Johnson and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Bechtel Marine Propulsion Corporation (03-RC-130422) Schenectady and Ballston Spa, NY, August 25, 2014. Order denying the Employer’s request for review of the Acting Regional Director’s decision and direction of election finding work group leaders (captains) not to be supervisors under Sec. 2(11) of the Act. Member Miscimarra would grant review regarding whether the captains are held accountable in various ways for their oversight of operators and inspectors, and therefore whether captains engage in the responsible direction of subordinate employees, given the potentially hazardous nature of the Employer’s operations and the substantial regulatory requirements, but otherwise he concurred in the decision to deny review. Petitioner- Local I 91 Knolls Atomic Power Laboratory Professional Firefighters Association, IAFF. Members Miscimarra, Hirozawa, and Johnson participated.
Rush University Medical Center (13-RC-132042) Chicago, IL, August 27, 2014. Order denying the Employer’s request for review of the Acting Regional Director’s Decision and Direction of Election because it raised no substantial issues warranting review. Members Miscimarra and Member Johnson would grant review but in the absence of a three-member majority to reconsider St. Vincent Charity Medical Center, 357 NLRB No. 79 (2011), they agreed to deny review. Petitioner - Healthcare, Professional, Technical, Office, Warehouse and Mail Order Employees Union, Local 743, International Brotherhood of Teamsters. Members Miscimarra, Hirozawa, and Johnson participated.
Foster Dairy Farms (32-UC-110927) Fresno, CA, August 27, 2014. Order denying the Employer’s request for review of the Region Director’s Decision and Order Clarifying Unit. In so doing, the Board agreed with the Regional Director’s conclusion that the novelty ice cream driver and ice cream loader positions were not historically excluded from the bargaining unit and shared an overwhelming community of interest with the employees in the Ashlan Avenue bargaining unit after consolidation. Union – Teamsters Local 517, International Brotherhood of Teamsters. Members Miscimarra, Hirozawa, and Johnson participated.
C Cases
The Boeing Company (19-CA-090932, et al.) Seattle, WA, August 25, 2014. The Board granted the motion for leave to file amicus brief.
Unimark Truck Transport, LLC (16-CA-081303 and 090200) Joplin MO, August 27, 2014. The Board remanded the case to the Regional Director for further appropriate action.
All American School Bus Corp., Atlantic Queens Bus Corp., B-Alert Inc., Atlantic Escorts Inc., City Wide Transit, Inc., Canal Escorts, Inc., CIFRA Escorts, Inc., Empire State Escorts, Inc., Gotham Bus Co., Inc., Hoyt transportation Corp., Kings Matron Corp., Lonero Transit Inc., Rainbow transit Inc., Amboy Bus Co., Inc., Reliant Transportation, Inc. (29-CA-100827, et al.) New York, NY, August 28, 2014. The Board granted the motion to sever cases 29-CA-100961 and 29-CA-101155.
Brown & Root Power and Manufacturing Inc., a subsidiary of Brown & Root, Inc. (29-CA-028815 and 028814) Panama City, FL, August 29, 2014. The Board unanimously denied the Charging Parties’ Renewed Motion for Reconsideration of the Board’s September 28, 2007 Decision and Order. After a review of the procedural history of the case, the Board found the renewed motion untimely and noted that the Charging Parties filed it over 6 years after the Board’s underlying decision and over two years after the Board issued its last order in this proceeding. The Board also concluded that its June 23, 2011 Supplemental Order, issued by a properly constituted three-member panel, effectively resolved all motions pending before the Board in this proceeding. Finally, the Board found that, even assuming the Charging Parties’ renewed motion was timely, they have not identified any material error or demonstrated extraordinary circumstances warranting reconsideration under Section 102.48(d)(1) of the Board’s Rules and Regulations. Charges were filed by the International Brotherhood of Boilermakers, Ironship Builders, Blacksmiths, Forges, and Helpers, AFL-CIO; and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 229. Members Miscimarra, Hirozawa, and Schiffer participated.
International Union of Elevator Constructors, No. 1 of New York City and Vicinity (Otis Elevator) (29-CB-084077) Astoria, NY, August 29, 2014. Order denying a petition to revoke an investigative subpoena ad testificandum filed by Otis Elevator Company. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, noting that the subpoenaed individual had been previously advised through counsel of the subject matter of the unfair labor practice charge and the nature of the testimony sought.
In addition, the Board rejected the Petitioner’s argument that the Board was without authority to issue the subpoena because it lacked a quorum at the time of its issuance. The Board noted that Sec. 11(1) of the Act states that “[t]he Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpoenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application,” and found that here, Chairman Pearce issued the subpoena in accordance with the Act. The Board also found without merit the Petitioner’s argument that the appointment of James G. Paulsen as the Regional Director of Region 29 was invalid because the Board lacked a quorum at that time, noting that Paulsen was appointed as Regional Director on December 28, 2011, at a time when the Board had a quorum.
In a personal footnote, Member Miscimarra agreed that the General Counsel described with sufficient particularity the evidence sought by the subpoena, but relied solely on the ground that the General Counsel’s opposition to the petition described the nature of the charge and provided general information regarding the testimony sought from the subpoenaed individual. Member Miscimarra stated that, in his view, the subpoena itself should describe with reasonable particularity the general topics or issues that would be the subject of subpoenaed testimony or other evidence, citing Sec. 11(1) of the Act and Sec. 102.31(b) of the Board’s Rules. Member Miscimarra stated that he believes that the requirement of “particularity” requires more than merely giving the case name and number of the proceeding in which the subpoena has been issued. He also noted that the Board has moved in the direction of providing substantially more detail in remedial notices, for example, to “facilitate a better understanding,” including hyperlinks and QR codes providing direct electronic access to the Board’s decisions, referring to Durham School Services LP, 360 NLRB No. 85 (2014). Member Miscimarra indicated that although subpoenas serve a different purpose, he believes they should provide fair notice to recipients regarding the topics or issues deemed relevant to the testimony or other evidence being sought.
Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.
All American School Bus Corp. (Reliant Transportation, Inc.) (29-CA-100827) New York, NY, August 29, 2014. The Board adopted the findings and conclusions of Administrative Law Judge Raymond P. Green’s September 20, 2013 decision after granting the Respondent’s request to withdraw its exceptions in Cases 29-CA-100961 and 101155 on August 25, 2014. The Respondent is ordered to take the action set forth in the Order. Charges filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO.
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Appellate Court Decisions
Teamsters Local Union No. 455 v. NLRB (Harborlite Corp.), Board Case No. 27-CA-021386 (reported at 357 NLRB No. 151) (10th Cir. decided August 27, 2014)
In a published opinion the court denied the union’s petition for review.
In its decision, the Board (Chairman Pearce and Members Becker and Hayes) adopted the administrative law judge’s recommended finding that the employer violated Section 8(a)(1) by threatening to lock out and permanently replace unit employees unless the union agreed to its bargaining demands. The Board, however, disagreed with the judge and dismissed the second allegation, that the employer violated Section 8(a)(3) and (1) by locking out unit employees while informing them that they would be permanently replaced. The union petitioned for review to challenge that dismissal.
As an initial matter, the Court noted that because Member Becker was on the panel, it held the case until after the Supreme Court issued NLRB v. Noel Canning, 134 S. Ct. 2550 (June 26, 2014), which, the Court stated, “dispels our main worries.” It explained that because Becker “was appointed during an intra-session recess exceeding two weeks . . . after Noel Canning, there seems little reason to doubt the validity of [his] appointment.” The Court then briefly suggested that Noel Canning might establish only a presumption, not a categorical rule, that recesses of 10 days or more are long enough to trigger the President’s authority under the Recess Appointments Clause, but had no reason to reach the issue. The Court also advised that even where a Board order was “invalid and issued without authority, . . . none of that would destroy our jurisdiction to hear the case.”
On the merits, the Court rejected the union’s contention that a previously lawful lockout becomes unlawful when an employer “threatens to hire not temporary workers but permanent ones.” Rather, the Court stated that there was no record evidence that “the hastily made and quickly withdrawn threat did anything to harm the parties’ collective bargaining efforts or impeded resolution of the labor dispute.” The Court discerned no inconsistency between the Board’s precedents and its dismissal of the complaint.
The Court’s opinion is here.
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Administrative Law Judge Decisions
No ALJ Decisions issued.
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