Summary of NLRB Decisions for Week of August 28 - September 1, 2017
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 the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229, AFL-CIO (Commercial Metals Company d/b/a CMC Rebar) (21-CC-183510; 365 NLRB No. 126) Temecula, CA, August 30, 2017.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(b)(4)(i)(B) by: (1) sending a text to employees of Commercial Metals Company d/b/a CMC Rebar stating “Friends Don’t Let Friends Cross Picket Lines”; (2) calling those employees on the telephone and stating they should not perform work for CMC Rebar; (3) distributing to those employees a flyer entitled “Picket Line Etiquette”; (4) and speaking with those employees to induce or encourage them to strike or refuse to perform work.
Charge filed by Commercial Metals Company d/b/a CMC Rebar. Administrative Law Judge Mary Miller Cracraft issued her decision on May 4, 2017. Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued
C Cases
International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (MGM Grand Detroit, LLC) (07-CB-186559) Detroit, MI, August 30, 2017. No exceptions having been filed to the July 20, 2017 decision of Administrative Law Judge Michael A. Rosas’ finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by MGM Grand Detroit, LLC.
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Appellate Court Decisions
G4S Secure Solutions (USA) Inc., Board Case No. 28-CA-023380, 364 NLRB No. 92 (11th Cir. decided September 1, 2017)
In an unpublished decision, the Court enforced the Board’s Order in full. The case arose out of charges alleging that the Employer, which provides security services in the Phoenix, Arizona, area and nationwide, violated the Act in response to a Union campaign among employees assigned to the East Valley Metro Rail portion of Phoenix’s Metro light rail system.
The Board (then-Chairman Pearce and Member Hirozawa; then-Member Miscimarra dissenting in part) found that the Employer committed several violations of Section 8(a)(1) and (3). On appeal, the Employer challenged only the Board’s finding (with then-Member Miscimarra dissenting in pertinent part) that the Employer had violated Section 8(a)(1) by maintaining a handbook rule stating that “[n]o insignias, emblems, buttons, or items other than those issued by the company may be worn on the uniform without expressed permission.”
The Court agreed with the Board that the ban was unlawfully overbroad because it could reasonably be construed as prohibiting employees from wearing union insignia while off duty. The Court also upheld the Board’s imposition of a nationwide remedy with respect to unlawful rules included in its nationwide employee handbook, and a notice posting directed at all Phoenix-area employees, to remedy the violations that were specific to the Union campaign at Metro that gave rise to the case.
The Court’s opinion may be found here.
Long Island Association for AIDS Care, Inc., Board Case No. 29-CA-149012 (reported at 364 NLRB No. 28) (2d Cir. decided August 31, 2017)
In a published opinion, together with an unpublished summary order, the Court enforced the Board’s order issued against this organization that provides prevention and treatment services for HIV/AIDS at its facility in Hauppauge, New York. The Board (then-Member Miscimarra and Members Hirozawa and McFerran) found that the Employer violated Section 8(a)(1) by promulgating and maintaining a confidentiality statement that prohibited employees from discussing wages and other terms and conditions of employment with other employees, non-employees, and the media. The Board also found that the Employer violated Section 8(a)(1) by threatening to discharge, and discharging, an employee who refused to agree to the unlawful restrictions in the confidentiality statement.
Before the Court, the Employer’s primary contentions were that the discharge could not be unlawful because the employee was not engaged in concerted activity, and that he was instead fired for poor work performance. In its published opinion, the Court disagreed, holding that substantial evidence supported the Board’s finding that the employee was discharged because of his refusal to sign the confidentiality statement’s unlawful provisions, and that “an employer violates Section 8(a)(1) when it terminates an employee for refusing to sign an unlawful employment document.” The Court rejected the Employer’s argument that proof of concerted activity was necessary, finding it contrary to law. Separately, in its summary order, the Court dispensed with the Employer’s remaining contentions.
The Court’s published and unpublished decisions dated August 31, 2017 may be found here.
New Vista Nursing and Rehabilitation, Board Case No. 22-CA-029988 (reported at 357 NLRB No. 69) (3d Cir. decided August 29, 2017)
In a published opinion in this test-of-certification case, the Court vacated the Board’s order issued against this operator of a nursing and rehabilitative care facility in Newark, New Jersey, and remanded the case to the Board for further proceedings. In doing so, the Court rejected numerous procedural arguments that the Employer raised concerning a series of five motions for reconsideration it had filed with the Board. However, on the merits issue—whether the Employer carried its burden of proving that the Employer’s licensed practical nurses (LPNs) are supervisors under Section 2(11) of the Act—the Court remanded with instructions for the Board to apply principles stated in two Third Circuit cases that predate Oakwood Healthcare, Inc., 348 NLRB 686 (2006).
In the underlying representation case, SEIU United Healthcare Workers East, N.J. Region filed a petition to represent the LPNs at the Newark facility in 2011. The Employer argued that the LPNs were statutory supervisors because they discipline or effectively recommend discipline of certified nurse aides (CNAs), and responsibly direct their work. Following a hearing, the Regional Director found that the Employer had failed to carry its burden of proving supervisory status. Specifically, the Regional Director concluded that the evidence presented did not show that the LPNs’ purported authority to prepare warning forms, or remove CNAs from the floor, constituted authority to discipline or effectively recommend discipline, nor did it show responsible direction because there was no evidence that the LPNs were held accountable for the CNAs’ work.
After the Board denied the Employer’s request for review, an election was held in which the LPNs voted 26 to 7 for representation. The Regional Director then certified the Union, but the Employer refused to bargain in order to challenge the certification. After various additional filings and rulings, which included an opinion from the Court that was later vacated in the wake of NLRB v. Noel Canning, 133 S. Ct. 2861 (2013), a granting of the Board’s petition for panel rehearing, and a short remand to the Board to reconsider two motions for reconsideration, the Court ordered the parties to submit supplemental briefs.
In its opinion, the Court (Chief Judge Smith, and Circuit Judges Greenaway and Fisher) rejected the Employer’s arguments regarding the Board’s denial of the motions for reconsideration. Among those rulings, the Court concluded that Member Becker’s recess appointment was valid, and that the recusals of Members Pearce and Hirozawa from two of the motions panels did not affect the validity of the Board’s orders denying those motions.
However, the court majority (Judge Greenaway dissenting) disagreed with the Board on the supervisory issue. The majority explained that, in finding that the LPNs lacked the authority to discipline or effectively recommend discipline of the CNAs, “the Board relied on the evidence that management independently investigated the LPNs’ written complaints and that few LPNs apparently submitted written complaints,” both of which, the Court stated, were “inappropriate factors” under its controlling precedent (NLRB v. Attleboro Associates, Ltd., 176 F.3d 154 (3d Cir. 1999), and NLRB v. Prime Energy Ltd. Partnership, 224 F.3d 206 (3d Cir. 2000)). Accordingly, the panel majority remanded the case “for the Board to apply the correct legal test on the merits issue.” In his dissenting opinion, Judge Greenaway wrote to express his view that the controlling precedent was instead Mars Home for Youth v. NLRB, 666 F.3d 850 (3d Cir. 2011), in which, he stated, “we approved of the general and specific interpretations of independent judgment at issue here.” In his view, the majority “misconstrues Mars Home, misreads Attleboro, and applies the wrong standard of review.”
The Court’s opinion is here.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued
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