Summary of NLRB Decisions for Week of August 29 - September 2, 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
Pittsburgh Athletic Association (06-CA-169088; 364 NLRB No. 105) Pittsburgh, PA, August 29, 2016.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing to bargain collectively and in good faith with the Union by failing to maintain health insurance without affording the Union the opportunity to bargain over the decision or its effects.
Charge filed by UNITE HERE Local 57, AFL–CIO, CLC. Chairman Pearce and Members Miscimarra and McFerran participated.
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StaffCo of Brooklyn, LLC (29-CA-134148; 364 NLRB No. 102) Brooklyn, NY, August 26, 2016.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by terminating its contributions to the bargaining unit employees’ pension plan upon the expiration of the collective-bargaining agreement without first notifying the Union and affording it an opportunity to bargain. The majority reasoned that Cauthorne Trucking, 256 NLRB 721 (1981), enf. granted in part, denied in part 691 F.2d 1023 (D.C. Cir. 1982)—where the Board found that the union had waived its right to bargain over post-expiration cessation of pension contributions by agreeing to a provision of a pension fund trust agreement—has been applied narrowly. Citing cases that have distinguished Cauthorne, the majority found that a clear and unmistakable waiver of the obligation to continue providing fringe benefits after expiration of the collective-bargaining agreement requires explicit contract language authorizing an employer to terminate its obligation to contribute to the funds. The majority further found that the language in the pension plan was not a waiver because it did not state that the Respondent’s obligation to make pension fund contributions ended with the expiration of the current collective-bargaining agreement. Rather, the language in the pension plan merely provided the rules with respect to the Respondent’s status as an employer under the pension plan.
Dissenting, Member McFerran found that the language in the pension plan permitted the Respondent’s unilateral discontinuation of its pension fund contributions when the collective-bargaining agreement expired. She further found that the parties’ course of conduct confirmed the parties’ intent to permit the Respondent to discontinue its pension contributions upon expiration of the agreement.
Charge filed by New York State Nurses Association. Administrative Law Judge Kenneth W. Chu issued his decision on May 21, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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Peacock Productions of NBC Universal Media, LLC (02-RC-092111; 364 NLRB No. 104) New York, NY, August 26, 2016.
In light of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board considered de novo its previous grant of review of the Regional Director’s Decision and Direction of Election finding that the Employer’s producers are not supervisors under Section 2(11). The Board reaffirmed its previous grant of review, and, on review, the Board panel majority (Chairman Pearce and Member Hirozawa) affirmed the Regional Director’s findings and remanded for an election to be held. Specifically, the majority found that the Employer did not carry its burden of proving that producers have the authority to assign significant duties to associate producers or crew, that producers are accountable for their direction of others, or that producers have authority to hire actors. Finally, citing Buchanan Marine, L.P., 363 NLRB No. 58 (2015), the majority rejected their dissenting colleague’s proposed three-factor test for determining supervisory status.
Dissenting, Member Miscimarra reiterated his previously expressed view that, in many cases, the Board’s analysis of supervisory status has become “increasingly abstract” and out of touch with workplace realities. He would find that the Employer produced sufficient evidence that producers have the authority to assign associate producers, crew, and actors; are accountable for their direction of others; and hire both actors and associate producers.
Petitioner – Writers Guild of America East, Inc. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Emerald Green Building Services, LLC (01-CA-147341 and 01-CA-147345; 364 NLRB No. 109) Norwood, MA, August 26, 2016.
In this successorship case, the Board found that the Respondent violated: (1) Section 8(a)(2) by recognizing and entering into a contract with Teamsters without that union representing an uncoerced majority of the unit employees, providing assistance and support to Teamsters by telling employees that they would be represented by Teamsters, soliciting employees to sign union authorization cards and dues-checkoff forms for Teamsters, and allowing a Teamsters’ representative to tell new employees at an orientation meeting that they had to become members of Teamsters as a condition of their employment; (2) Section 8(a)(3) by entering into and maintaining a collective-bargaining agreement with Teamsters that contains provisions requiring membership in that union as a condition of employment, and refusing to hire 12 of its predecessor’s employees at Cross Point and 4 of its predecessor’s employees at Nagog Park to avoid a successorship obligation to recognize and bargain with SEIU; and (3) Section 8(a)(5) by refusing, as a legal successor to Peace Plus, to recognize and bargain with SEIU as the representative of the unit employees at Cross Point and Nagog Park.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa further found that the Respondent violated Section 8(a)(5) by unilaterally setting initial terms and conditions of employment for unit employees without first giving SEIU notice and an opportunity to bargain about those changes. The same majority also granted the General Counsel’s request to order the Respondent to read aloud a notice to its employees and provide a Spanish language interpreter. Contrary to the majority, Member Miscimarra would find that the Respondent did not violate Section 8(a)(5) by setting initial terms and conditions of employment, and he disagreed that a notice-reading remedy is warranted.
Charges filed by Service Employees International Union, Local 32BJ. Administrative Law Judge Raymond P. Green issued his decision on September 10, 2015. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Leroy Tate d/b/a The Green Machine Lawn & Landscaping (14-CA-157587, 14-CA-157596, and 14-CA-163528; 364 NLRB No. 119) East St. Louis, Illinois, August 30, 2016.
The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of an informal settlement agreement. The Board found that the Respondent failed to comply with the terms of the settlement agreement; accordingly, it deemed all of the allegations in the reissued complaint to be true. The Board ordered the Respondent to reinstate and make whole the unlawfully discharged employees and to make whole the unlawfully suspended employees for loss of earnings and benefits suffered as a result of the Respondent’s unlawful conduct. In addition, in accordance with the Board’s recent decision in King Soopers, Inc., 364 NLRB No. 93 (2016), the Board ordered the Respondent to compensate the discharged employees for their search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings. The Board further ordered the Respondent to compensate the employees for any adverse tax consequences of receiving lump sum backpay awards and to file a report with the Regional Director allocating the backpay awards to the appropriate calendar year for each employee.
Charges filed by individuals. Chairman Pearce and Members Miscimarra and McFerran participated.
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Wolf Creek Nuclear Operating Corporation (14-RC-160836; 364 NLRB No. 111) Burlington, KS, August 26, 2016.
In this Decision on Review, a Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the Regional Director’s dismissal of the petition, finding that the Employer had failed to establish that its Security Training Instructors are managerial employees excluded from the protection of the Act. The majority found that any discretion that the Security Training Instructors exercise in developing the Employer’s security training programs is severely restricted by the Nuclear Regulatory Commission’s regulations and regulatory guide. The majority reinstated the petition and remanded the case to the Regional Director for further appropriate action. Dissenting, Member Miscimarra would affirm the Regional Director’s dismissal of the petition and find that the Security Training Instructors are managerial employees. In his view, the Security Training Instructors exercise a significant degree of independent discretion when preparing lesson plans and designing training exercises.
Petitioner – United Government Security Officers of America, International Union and its Local 252. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Volkswagen Group of America, Inc. (10-CA-166500 and 10-CA-169340; 364 NLRB No. 110) Chattanooga, TN, August 26, 2016.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that either were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. Member Miscimarra noted that he would have granted review in the underlying representation proceeding regarding whether the petitioned-for maintenance-only bargaining unit constituted an impermissibly fractured unit that departed from the Employer’s organizational structure, and whether an overwhelming community of interest warranted including production and/or other employees in any bargaining unit. He agreed, however, that the Respondent failed to raise any new matters that are properly litigable in this unfair labor practice proceeding and that summary judgment is appropriate, with the parties retaining their respective rights to litigate relevant issues on appeal.
The Board treated a document styled as “Respondent Volkswagen Group of America Chattanooga Operations, LLC’s Answer and Affirmative Defenses to Complaint” as an answer filed on behalf of the Respondent, Volkswagen Group of America, Inc. The Board noted that taking the document as styled at face value would lead to the conclusion that the Respondent failed to file a responsive pleading, and that in such circumstances all the allegations of the complaint would be deemed to be admitted to be true, and the Respondent would waive its right to assert a defense. In addition, the Board noted that the Respondent was precluded from raising issues regarding its name in this proceeding because it failed to challenge the Certification of Representative on the basis that it named the Respondent as the Employer. Finally, with respect to the name issue, the Board found that the Respondent is estopped from denying it is the employer of the employees at issue in this case, noting that the Respondent filed its own petition for election, naming itself as the employer, in an earlier representation proceeding involving the Chattanooga facility.
The Board noted that the Respondent argued in its response to the Notice to Show Cause that the Board’s April 13, 2016 Order in Case 10-RC-162530, denying the Respondent’s Request for Review of the Regional Director’s Decision and Direction of Election, did not rule on the Respondent’s contention that the Regional Director’s approval of the petitioned-for unit violated Section 9(c)(5). The Board responded that, in denying the Respondent’s Request for Review, it considered and rejected each contention raised therein.
The Board found no merit in the Respondent’s affirmative defense, raised in its answer to the consolidated complaint, that it “did not have a duty to bargain with the Union from the date the election was certified to the date that the Board issued its order denying Respondent’s request for review” of the Regional Director’s Decision and Direction of Election. In addition, the Board noted that the Union made a bargaining request after the Board denied the Respondent’s request for review, and that the Respondent admits it refused to recognize and bargain with the Union thereafter. Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union.
Charges filed by United Auto Workers, Local 42. Members Miscimarra, Hirozawa, and McFerran participated.
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Total Security Management Illinois 1, LLC (13-CA-108215; 364 NLRB No. 106) Chicago, IL, August 26, 2016.
A full-Board majority consisting of Chairman Pearce and Members Hirozawa and McFerran reaffirmed in substantial part the analysis of Alan Ritchey, Inc., 359 NLRB 369 (2012), which was invalidated on procedural grounds by the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). The majority held that discretionary discipline is a mandatory subject of bargaining, like other terms and conditions of employment, and that, consistent with precedents regarding other mandatory subjects of bargaining, employers may not impose certain types of discipline unilaterally. In reaching this conclusion, the majority overruled Fresno Bee, 337 NLRB 1161 (2002), in which a Board panel had summarily adopted an administrative law judge’s flawed conclusion that there was no obligation to bargain before imposing discipline. But, based on the nature of discipline and the practical needs of employers, the Board majority imposed a more limited bargaining obligation than that which applies to other terms and conditions of employment. The majority applied its holding prospectively; thus, it dismissed the allegation that the Respondent violated Section 8(a)(5) by unilaterally imposing the discretionary discharges at issue. Nevertheless, the majority explained how its standard remedies, which include backpay and reinstatement, would be applied in subsequent cases.
Member Miscimarra dissented in part and concurred in part, joining the majority only in the choice not to apply its analysis retroactively. In dissenting from the majority’s substantive analysis, he disagreed with the conclusion that decisions to impose discipline are changes subject to bargaining under existing Board precedent; rather, he found the majority’s bargaining obligation irreconcilable with various existing legal principles, including Fresno Bee, and precluded by certain express provisions of the Act. Further, he argued that the bargaining obligation would create great uncertainty and spur extensive litigation.
Charge filed by International Union Security Police Fire Professionals of America (SPFPA). Administrative Law Judge Arthur J. Amchan issued his decision on May 9, 2014. Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.
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Durham School Services, L.P. (15-CA-106217, et al.; 364 NLRB No. 107) Santa Rosa County, FL, August 26, 2016.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by asking an employee if it could count on her for a “no vote.” A panel majority consisting of Members Hirozawa and McFerran adopted the judge’s finding that the Respondent violated Section 8(a)(1) by orally promulgating a rule prohibiting employees from displaying union insignia on cakes served at potluck events in the workplace. Member Miscimarra concurred in the finding that the prohibition violated Section 8(a)(1), but would not find that the isolated prohibition constituted promulgation of a rule. The same panel majority also adopted the judge’s conclusions that the Respondent violated Section 8(a)(1) by: interrogating an employee about how her upcoming trip to address the Respondent’s parent company about working conditions would be funded; threatening to deny that employee’s leave request if her trip was funded by the Union; issuing a threat of futility; and creating the impression of surveillance of employees’ protected activity. Member Miscimarra dissented from these findings. The panel unanimously found it unnecessary to pass on several interrogation allegations. The Board’s amended order directs the Respondent to rescind the orally promulgated rule prohibiting employees from displaying union insignia on cakes served at potluck events in the workplace.
Charges filed by Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 991. Administrative Law Judge Michael A. Rosas issued his decision on October 30, 2015. Members Miscimarra, Hirozawa, and McFerran participated.
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International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its territories and Canada Local No. 151 (SMG and The Freeman Companies d/b/a Freeman Decorating Services, Inc.) (14-CB-101524; 364 NLRB No. 89) Lincoln, NE, August 26, 2016.
The Board affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(b)(1)(A) and (2) by granting priority to its members for job referrals for employment with SMG/Pershing and Freeman Decorating Services, Inc., refusing to refer two members to a Freeman job, and suspending seven members from receiving referrals from its exclusive hiring hall. The Board also affirmed the judge’s conclusions that the Respondent violated Section 8(b)(1)(A) by refusing to pay money from its V-Fund to nonmembers and to five members, and by maintaining certain hiring hall work rules. In a separate opinion, concurring in part and dissenting in part, Member Miscimarra concurred in finding these violations.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa agreed with the judge’s dismissal of a complaint allegation that certain language in the Respondent’s constitution and bylaws was unlawful because it did not include language consistent with the four-month limitation on exhaustion of remedies set forth in Section 101(a)(4) of the Labor Management Reporting and Disclosure Act. Member Miscimarra dissented from the majority’s decision to affirm the dismissal of this allegation.
Charge filed by an individual. Administrative Law Judge Christine E. Dibble issued her decision on June 20, 2014. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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United States Postal Service (07-CA-142926; 362 NLRB No. 116) Swartz Creek, MI, August 27, 2016.
This case involved the Board’s review of the Administrative Law Judge’s order approving settlement terms proposed by the Respondent, over the objections of the General Counsel and the Charging Party.
A full-Board majority consisting of Chairman Pearce and Members Hirozawa and McFerran clarified that the appropriate standard for evaluating orders approving and incorporating the settlement terms proposed by a respondent, over the objections of the General Counsel and the charging party(ies), is “whether the order provides a full remedy for all of the violations alleged in the complaint.” The majority observed that the judge’s order contained a clause that limited the availability of the enforcement procedure to the 6 months following case closure. Finding that this limitation differed from the remedy that would have been ordered had the case been successfully litigated to conclusion, the majority concluded that the order did not provide a full remedy for the violations alleged in the complaint.
Dissenting, Member Miscimarra would apply the Board’s former “reasonableness” standard to evaluate all “consent settlement agreements,” including those opposed by the General Counsel and charging party(ies). Applying that standard, he would approve the judge’s order on the basis that the terms of the Respondent’s proposed settlement were reasonable. Further, in his view, even applying the “full remedy” standard adopted by the majority, the proposed settlement terms “must be deemed acceptable by the Board.”
Charge filed by Branch 256, National Association of Letter Carriers (NALC), AFL–CIO. Administrative Law Judge Christine E. Dibble issued her order on June 4, 2015. Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.
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Medco Health Solutions of Las Vegas, Inc. (28-CA-022914 and 28-CA-022915; 364 NLRB No. 115) Las Vegas, NV, August 27, 2016.
This case was on remand from the United States Court of Appeals for the District of Columbia Circuit. In a decision reported at 357 NLRB 170 (2011), the Board had adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by ordering an employee to remove a T-shirt critical of a nonmonetary incentive program called the “WOW program,” by impliedly threatening him with discharge over his opposition to the program, and by maintaining an overly broad work rule prohibiting apparel containing “degrading, confrontational, slanderous, insulting or provocative” statements. The Board had also found that the Employer violated the Act by unilaterally changing its dress code without bargaining with the Union. On remand, the Court directed the Board to address whether: (1) the Respondent established special circumstances justifying its requiring an employee to remove a T-shirt bearing the slogan, “I don’t need a WOW to do my job,” and (2) the Respondent’s dress code was unlawful under Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). A Board panel majority consisting of Members Hirozawa and McFerran reaffirmed the prior findings that the Respondent failed to establish special circumstances and that the dress code was unlawful.
Addressing the question of special circumstances, the majority first responded to the Court’s question whether the Respondent had established a public image about its WOW program that would justify its ban on anti-WOW clothing. The majority found that the Respondent had failed to establish such a public image, noting that the Respondent did not demonstrate that it implemented appearance rules to meet its business objective of promoting the WOW program as an important part of its business plan to attract and retain customers. The majority distinguished cases involving employee messages disparaging products, explaining that when an employee’s protected message relates to terms and conditions of employment, as opposed to the employer’s products, the Board requires specific evidence, rather than conjecture, that the apparel adversely affected or would adversely affect the employer’s business and that, because of the deleterious effects, its ban on the wearing of such clothing outweighs the employees’ statutory right, in order to find special circumstances. The majority further found that, even if the Respondent had shown that protection of the reputation of its WOW program constituted special circumstances, it failed to demonstrate the necessity of the total ban on the anti-WOW T-shirt due to the insufficiency of the evidence that a partial ban would be impractical.
The majority also found that the Respondent unlawfully applied its dress code against Section 7 activity and, like the prior Board, found it unnecessary to pass on the judge’s additional finding that employees would reasonably construe the rule to prohibit Section 7 activity.
Dissenting, Member Miscimarra would find that the Respondent demonstrated special circumstances justifying its prohibition of the anti-WOW T-shirt because the T-shirt’s message had an inherent tendency to undermine the employer interest at stake. He challenged the majority’s additional finding that a total ban was not justified because he would find that employees had more than fleeting contact with customers. Addressing the dress code allegation, Member Miscimarra would find that the dress code was lawfully applied to prohibit the anti-WOW T-shirt. He also reiterated his disagreement with the Lutheran Heritage standard, a position he first articulated in William Beaumont Hospital, 363 NLRB No. 162 (2016).
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, Local 675. Administrative Law Judge William G. Kocol issued his decision on September 14, 2010. Members Miscimarra, Hirozawa, and McFerran participated.
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E.I. du Pont de Nemours, Louisville Works and E.I. du Pont de Nemours and Company (04-CA-033620, 09-CA-040777, and 09-CA-041634; 364 NLRB No. 113) Edge Moor, DE, August 26, 2016.
Upon remand of these consolidated proceedings from the United States Court of Appeals for the District of Columbia Circuit, the Board reexamined whether the Respondent violated Section 8(a)(5) and (1) by unilaterally changing the terms of the employees’ benefit plan at its facilities in Louisville, Kentucky and Edge Moor, Delaware, at a time when the applicable collective-bargaining agreements had expired and the parties were negotiating for successor agreements and were not at impasse. In affirming the Board’s prior findings of violations in both cases, a full-Board majority consisting of Chairman Pearce and Members Hirozawa and McFerran, pursuant to the Court’s remand instructions, returned to the rule it followed in its earlier decisions, including Beverly Health & Rehabilitation Services, 335 NLRB 635 (2001), enfd. in relevant part 317 F.3d 316 (D.C. Cir. 2003), and Register-Guard, 339 NLRB 353 (2003), that discretionary unilateral changes ostensibly made pursuant to a past practice developed under an expired management-rights clause are unlawful. The majority overruled precedent, including the Board’s decisions in the Courier-Journal cases, 342 NLRB 1093 (2004) and 342 NLRB 1148 (2004), Capitol Ford, 343 NLRB 1058 (2004), and Beverly Health & Rehabilitation Services, 346 NLRB 1319 (2006), to the extent that those Board decisions cited by the Court conflicted with well-settled waiver principles, and were inconsistent with the Act’s goal to encourage the practice of collective bargaining and longstanding precedent applying that policy.
The majority also defined and applied Board precedent defining what constitutes a past practice that an employer must continue as status quo terms and conditions of employment in the absence of a collective-bargaining agreement. The Board provided an overview of the Board’s past practice doctrine as developed under NLRB v. Katz, 369 U.S. 736, 747 (1962), emphasizing that the Board and the courts have repeatedly held that employers may act unilaterally pursuant to an established practice only if the changes are not made in the exercise of managerial discretion. The Board addressed a line of cases where the Board found that employers were permitted to make unilateral changes to health care benefits pursuant to a past practice defense. The Board reversed the Courier-Journal decisions, distinguishing them from this line of cases, and Capitol Ford, 343 NLRB 1058 (2004), on the additional ground that they were contrary to well-established past principles.
Having overruled the Courier-Journal decisions and Capitol Ford, the majority found that the Respondent’s wide-ranging and varied changes to the benefits of unit employees, made with no cognizable fixed criteria, did not establish a past practice that the Respondent was permitted to continue when the applicable collective-bargaining agreements had expired. Therefore, the majority held that following the expiration of the parties’ collective-bargaining agreements, the Respondent had the statutory obligation to adhere to the terms and conditions of employment that existed on the expiration date at each facility until it bargained to agreement or reached a good faith impasse in overall bargaining for a new agreement.
Dissenting, Member Miscimarra found that the majority redefined the definition of change under the Supreme Court’s decision in NLRB v. Katz, 369 U.S. 736 (1961), and that, under the Board’s traditional application of Katz, an employer’s action that is similar in kind and degree to what the employer did in the past is not a change. Member Miscimarra found that the Respondent’s similar types of changes to the employees’ benefit plan as to what it had made in previous years were lawful pursuant to its long-standing practice. He further explained that the majority’s decision misrepresented Board history in finding that the Courier-Journal cases, rather than Beverly 2001 and Register-Guard, were unexplained departures from long-established Board precedent. Member Miscimarra reasoned that Board case law, including Shell Oil Co., 149 NLRB 283 (1964) and Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB 1574 (1965), supported the Courier-Journal cases and finding that the Respondent’s actions were not a change that required bargaining.
Charges filed by Paper, Allied-Industrial, Chemical and Energy Workers International Union, and its Local 5-2002, in Cases 09-CA-040777 and 09-CA-041634. Administrative Law Judge Karl H. Buschmann issued his decision on December 15, 2005. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), and its Local 4-786 in Case 04-CA-033620. Administrative Law Judge Paul Bogas issued his decision on December 23, 2005. Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.
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Advanced Life Systems, Inc. (19-CA-096464 and 19-CA-096899; 364 NLRB No. 117) Yakima, WA, August 27, 2016.
A unanimous Board panel affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by unilaterally discontinuing its established practice of granting annual Christmas payments, and Section 8(a)(1) by making coercive statements to employees before and after a representation election about discontinuing the Christmas payments and also periodic wage increases. A Board panel majority consisting of Chairman Pearce and Member Hirozawa further affirmed the judge’s conclusion that the Respondent also violated Section 8(a)(3) and (1) by discontinuing the Christmas payments and wage increases because of employees’ union activity regardless of whether it had an established practice of granting them in the past. In addition, the majority found it unnecessary to pass on whether the Respondent also violated Section 8(a)(5) and (1) by unilaterally discontinuing an allegedly established practice of granting periodic wage increases to employees and Section 8(a)(1) by making a separate allegedly coercive statement to employees after the representation election about not needing to give wage increases during contract negotiations because neither additional finding would materially affect the remedy.
Dissenting in part, Member Miscimarra explained that he would not find the Section 8(a)(3) violation because, in his view, the General Counsel failed to show that the Respondent engaged in discrimination motivated by a desire to discourage union membership as it believed it had to bargain over such matters with the newly-certified Union. In addition, instead of finding it unnecessary to pass, Member Miscimarra would find that the Respondent did not violate Section 8(a)(5) by not granting the wage increases because, in his view, Respondent did not have an established practice of awarding them prior to the Union’s certification. Nor did Respondent violate Section 8(a)(1) by informing employees that it did not need to give wage increases during contract negotiations, because Respondent made a clear and correct statement of its obligations under the Act.
Charges filed by International Association of EMTs and Paramedics. Administrative Law Judge Michael A. Rosas issued his decision on May 2, 2014. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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The American National Red Cross, Great Lakes Blood Services Region and Mid-Michigan Chapter (07-CA-052033, et al.; 364 NLRB No. 98) Lansing, MI, August 26, 2016.
Applying E.I. du Pont de Nemours & Company, 364 NLRB No. 113 (2016), a unanimous Board panel affirmed the Administrative Law Judge’s findings that the Respondent Chapter violated Section 8(a)(5) and (1) by unilaterally implementing post-contract expiration changes to 401(k) benefits covering employees in the clerical/warehouse unit, and that the Respondent Region violated Section 8(a)(5) and (1) by unilaterally implementing post-contract expiration changes to pension and 401(k) benefits covering employees in the collections and laboratory/clerical/ distribution (LCD) units. Applying E.I. du Pont, the panel unanimously reversed the judge and found that the Respondent Region violated Section 8(a)(5) and (1) by unilaterally implementing post-contract expiration changes to pension and 401(k) benefits covering employees in the apheresis and mobile unit assistant (MUA) units, and by unilaterally implementing post-contract expiration changes to pension benefits covering employees in the clerical/warehouse unit.
The panel also unanimously adopted the judge’s findings that the Respondent Region violated Section 8(a)(5), (3), and (1) by denying guaranteed work hours to employees in the collections unit in response to an unfair labor practice strike, and violated Section (8)(a)(5) and (1) by failing to provide the Unions with relevant information requested during negotiations for successor contracts, unilaterally implementing a stricter no-fault attendance policy, and unilaterally changing a past practice pertaining to union meetings held on its property. The panel further unanimously adopted the judge’s findings that the Respondent Region and Chapter violated Section 8(a)(5) and (1) by unilaterally implementing a new health insurance program, and that the Respondent Chapter violated Section 8(a)(5) and (1) by making unilateral changes to the retiree medical program. Finally, the panel unanimously adopted the judge’s dismissal of allegations that the Respondent Region violated Section 8(a)(5) and (1) by unilaterally reducing local health insurance options. A panel majority consisting of Members Hirozawa and McFerran, with Chairman Pearce dissenting, also adopted the judge’s dismissal of allegations that both Respondents violated Section 8(a)(5) and (1) by bargaining in bad faith with a fixed mind and no intention of reaching agreement with respect to health insurance, pension, and 401(k) benefits.
Charges filed by Local 459, Office and Professional Employees International Union, AFL-CIO, and Local 580, International Brotherhood of Teamsters. Administrative Law Judge Jeffrey D. Wedekind issued his decision on May 5, 2011. Chairman Pearce and Members Hirozawa and McFerran participated.
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UniQue Personnel Consultants, Inc. (25-CA-132398; 364 NLRB No. 112) Galesburg, IL, August 26, 2016.
A unanimous Board panel affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by instructing an employee not to discuss her terms and conditions of employment with other employees, customers, or the general public, and by threatening her with legal prosecution if she discussed her terms and conditions of employment further. A Board panel majority consisting of Chairman Pearce and Member Hirozawa also affirmed the judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging the employee because of her protected concerted activity and by interrogating her about that activity. The majority agreed with the judge that the employee’s soliciting a coworker’s advice and support regarding how to respond to the discipline she had received was both concerted and undertaken for the purpose of mutual aid or protection.
Dissenting in part, Member Miscimarra would have reversed the judge’s conclusions that the Respondent violated Section 8(a)(1) by interrogating and by discharging the employee. Although questioning whether the employee’s conversation with her coworker was concerted, he found that the conversation was not for the requisite purpose of mutual aid or protection because the matters discussed between the employee and her coworker concerned only the soliciting employee’s terms and conditions of employment.
Charge filed by an individual. Administrative Law Judge Christine E. Dibble issued her decision on May 28, 2015. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Pennsylvania State Corrections Officers Association (04-CA-037648, 04-CA-037649 and 04-CA-037652; 364 NLRB No. 108) Harrisburg, PA, August 26, 2016.
At issue in this compliance case was the amount of Transmarine backpay owed as a result of the Respondent’s failure to bargain with the Union about the effects of its decision to discharge five employees. A Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s finding that the backpay period ran for 26 weeks, from March 28 to September 28, 2012. In so doing, the majority affirmed the judge’s finding that the parties’ April 11, 2012 impasse was not a lawful impasse and therefore did not toll the backpay period, and affirmed the judge’s finding that the Region’s failure to process a decertification petition did not warrant terminating the backpay period prior to September 28, 2012. Dissenting, Member Miscimarra would find that the parties reached a lawful impasse on April 11, 2012, and therefore, that the Respondent owed only 2 weeks of backpay. The same panel majority reversed the judge’s finding that one of the discriminatees failed to mitigate his damages. Member Miscimarra found it unnecessary to pass on whether the discriminatee failed to mitigate. Finally, the panel unanimously denied the General Counsel’s motion to vacate the Board’s March 23, 2012 Decision and Order and to consider de novo the judge’s March 17, 2011 decision.
Charges filed by Business Agents Representing State Union Employees Association. Administrative Law Judge Robert A. Giannasi issued his supplemental decision on May 23, 2014. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Wal-Mart Stores, Inc. (32-CA-090116, et al.; 364 NLRB No. 118) Bentonville, AR, August 27, 2016.
A Board panel majority adopted the Administrative Law Judge’s finding that the Respondent unlawfully disciplined six employees for engaging in a work stoppage inside a retail store. The majority agreed that employees were engaged in a protected work stoppage under 9 of the 10 factors set forth in Quietflex Mfg. Co., 344 NLRB 1055 (2005), noting that the work stoppage sought to resolve immediately pressing problems, was peaceful, lasted for a short duration, was largely confined to the customer service area of the Respondent’s store, resulted in little to no disruption of the Respondent’s ability to serve its customers, and that employees had no adequate means to present their group grievance to management. Dissenting, Member Miscimarra argued that the Board should not apply the Quietflex factors and should instead find the protest unprotected under Restaurant Horikawa, 260 NLRB 197 (1982), where the Board articulated special deference to retail employers to proscribe sales floor disruptions as a means of protecting the customer/retailer relationship. Even applying the Quietflex factors, however, Member Miscimarra would find that the protest was unprotected because of its length (88 minutes), because the protestors seized the employer’s property by blocking the customer service area and disrupting customers’ peaceful experience in the store, and because protestors could have availed themselves of the open door policy to present their grievance to management.
Charges filed by The Organization United for Respect At Walmart (OUR Walmart). Administrative Law Judge Geoffrey Carter issued his decision on December 9, 2014. Chairman Pearce and Members Hirozawa and Miscimarra participated.
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Children’s Hospital and Research Center of Oakland d/b/a Children’s Hospital of Oakland (32-CA-086106; 364 NLRB No. 114) Oakland, CA, August 26, 2016.
This case was on remand from the United States Court of Appeals for the District of Columbia Circuit. In a decision reported at 360 NLRB No. 56 (2014), the Board had adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by refusing to arbitrate pending grievances with the Charging Party Union after the Union was superseded by a new union. On remand, the Court directed the Board to explain how imposing an obligation on the employer to arbitrate grievances with a superseded union can be reconciled with the exclusive representation rights of the newly certified union.
The Board reaffirmed its prior conclusion that the Respondent violated Section 8(a)(5) and (1) because it had a continuing duty to arbitrate grievances that arose during its bargaining relationship with the Union. In so doing, the Board concluded that Congress had not directly spoken to the precise question at issue in this case. The Board explained that the purposes of the Act were best effectuated by requiring employers to arbitrate pending grievances arising under a collective-bargaining agreement with the union that was party to that agreement, even if the union had been superseded by another union. Noting that if an employer had no statutory duty to arbitrate with the old union, then the Act would provide no mechanism at all by which arbitration of employees’ grievances arising under the old contract could be required, the Board concluded that such a result would be inconsistent with important statutory policies—namely, the vindication of employees’ right to bargain through representatives of their own choosing, the strong Federal policy in favor of arbitration to resolve labor disputes, and employees’ freedom to choose their representatives. The Board reasoned that neither the exclusivity principle embodied in Section 9(a), nor the corresponding “negative duty” not to bypass the majority representative by dealing with another union in violation of Section 8(a)(2), precluded its holding.
Concurring, Member Hirozawa stated that, in his view, the subject-to-Section-9(a) clause does not mean that, for an employer to have a duty to bargain with a union on behalf of its employees, the union must be a Section 9(a) exclusive representative. He observed that the Section 8(a)(5) clause at issue here simply says, “subject to the provisions of section 9(a).” Unlike Section 8(a)(3), this clause does not say, if such representative is “the representative of the employees as provided in section 9(a).” Further, he noted that there is no requirement in Section 7 that the representatives through which employees exercise their right to bargain have attained Section 9(a) status or otherwise demonstrated majority support.
Charge filed by Service Employees International Union, United Healthcare Workers-West. Administrative Law Judge William G. Kocol issued his decision on August 1, 2013. Members Miscimarra, Hirozawa, 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
Hallmark-Phoenix 3, LLC (12-CA-090718 and 12-CA-094037) Houston, TX, August 30, 2016. The Board remanded the cases to the Regional Office for further action consistent with the Court’s March 24, 2016 decision and for issuance of an amended compliance specification.
Greif Packaging, LLC (09-CA-060244) Florence, KY, September 2, 2016. No exceptions having been filed to the July 8, 2016 decision of Administrative Law Judge Melissa M. Olivero’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied, Industrial and Service Workers International Union, AFL-CIO-CLC.
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Appellate Court Decisions
Newark Portfolio JV, LLC, Board Case No. 22-CA-100534 (reported at 362 NLRB No. 108) (3d Cir. decided September 1, 2016).
In an unpublished opinion, the Court granted the petition for review in this test-of-certification case and denied enforcement of the Board’s bargaining order issued against a company that manages two residential apartment buildings in Newark, New Jersey. In the underlying representation case, the Board certified Residential Laborers Local 55, Laborers International Union of North America as the representative of a unit of superintendents, porters, and maintenance employees after they voted 6-4 in support of the Union in a June 2012 election. In its opinion, the Court found merit to the Employer’s objection alleging impermissible electioneering by union agents.
On the morning of the election, the Board agent held a pre-election conference with observers from the Employer and Union. Thereafter, while the election was in progress, 20-30 non-employee union supporters stood on the public sidewalk outside the building where the election was taking place and urged approaching employees to vote for the Union. Apparently referring to company owners, one person shouted, “These Jews don’t care about you; they only care about the money.” After the election, the Employer filed two objections, one alleging impermissible electioneering at or near the polling place, and another alleging that a union agent made an anti-Semitic slur that interfered with the employees’ free choice.
After a hearing on objections, the hearing officer issued a report recommending that the objections be overruled. Regarding electioneering, the hearing officer found that such conduct, assuming it did occur as alleged, was not improper because it did not occur in the general vicinity of voting and was not in a no-electioneering zone established by the Board agent. With respect to the slur, the hearing officer found that, even assuming a union agent uttered it, such a single, isolated remark was not a significant and sustained aspect of the Union’s campaign that would have materially affected the election. In February 2013, the Board issued a decision adopting the hearing officer’s recommendations and certifying the Union.
On review, the Court held that the testimony of a union organizer who attended the pre-election conference supported the inference that the Board agent did, in fact, designate the front of the building where the union agents were stationed as a no-electioneering zone. Accordingly, the Court held that the Board’s conclusion to the contrary was not based on substantial evidence. Regarding the second objection, the Court stated that, because the Board had not considered the impact of the slur in the context of its being made during the Union’s improper electioneering, it could not determine whether the remark could be found harmless, and did not reach the issue.
The Court’s opinion is here.
Katch Kan USA, LLC, Board Case No. 16-CA-134743 (reported at 362 NLRB No. 162) (5th Cir. decided August 30, 2016).
The Court enforced the Board’s order in an unpublished per curiam opinion that stated the following:
Katch Kan USA, L.L.C. seeks review of a National Labor Relations Board order finding that it engaged in an unfair labor practice when it fired Tanner Siems. Katch Kan maintains that it terminated Siems because he refused an assignment to Saudi Arabia. The Board, however, adopted the finding of an administrative law judge who concluded that the termination was retaliation for Siems’s engaging in protected activity just eleven days before he was fired. The protected activity involved participation in a work stoppage that protested a significant change in Katch Kan’s compensation system.
The standard of review decides the outcome of this appeal. We must enforce the Board’s order so long as it is supported by substantial evidence, which we have described as evidence that is “relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion.” El Paso Elec. Co. v. N.L.R.B., 681 F.3d 651, 656–57 (5th Cir. 2012) (internal quotation marks and citation omitted). Having reviewed the record, briefs, and arguments of counsel, we conclude that substantial evidence supports the Board’s order.
Katch Kan’s petition is DENIED. The Board’s order is ENFORCED.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Mastec, Inc. (12-CA-153478 and 12-CA-154795; JD-81-16) Miami, FL. Administrative Law Judge Michael A. Rosas issued his decision on August 31, 2016. Charges filed by individuals.
Wal-Mart Stores, Inc. (28-CA-167277; JD(SF)-34-16) Gilbert, AZ. Administrative Law Judge Gerald M. Etchinghman issued his decision on August 31, 2016. Charge filed by an individual.
Long Beach Memorial Medical Center, Inc. d/b/a Long Beach Memorial Medical Center & Miller Children’s and Women’s Hospital Long Beach (21-CA-157007; JD(SF)-33-16) Long Beach, CA. Administrative Law Judge Jeffrey D. Wedekind issued his decision on August 31, 2016. Charge filed by California Nurses Association/National Nurses United (CNA/NNU).
United Parcel Service, Inc. (07-CA-164488; JD-83-16) Detroit, MI. Administrative Law Judge Susan A. Flynn issued her decision on September 1, 2016. Charge filed by an individual.
Marathon Petroleum Co., d/b/a Catlettsburg Refining, LLC (09-CA-162710; JD-84-16) Catlettsburg, KY. Administrative Law Judge Thomas M. Randazzo issued his decision on September 1, 2016. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, and its Local 8-719.
Howard Industries, Inc. (15-CA-164449; JD-82-16) Laurel, MS. Administrative Law Judge Geoffrey Carter issued his decision on September 2, 2016. Charge filed by International Brotherhood of Electrical Workers, Local 1317.
United States Postal Service (07-CA-160663; JD-85-16) Detroit, MI. Administrative Law Judge Christine E. Dibble issued her decision on September 2, 2016. Charge filed by Branch 434, National Association of Letter Carriers (NALC), AFL-CIO.
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