Summary of NLRB Decisions for Week of August 3-7, 2015
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
Student Transportation of America, Inc. (04-RC-113131; 362 NLRB No. 156) Levittown, PA, August 3, 2015.
The Board agreed with the judge’s recommendation to overrule challenges to the ballots of two employees. A Board panel majority consisting of Members Hirozawa and McFerran found that a vice president of the Employer implicitly threatened unit employees with job loss if the employees voted in favor of the Union. Specifically, at two meetings held with employees before the election, the vice president, while discussing “what would happen in the Union got in,” stated that the Employer “had it written into [its] contract” with the Township that the Employer “could walk away” from the contract if operations “became too costly.” Members Hirozawa and McFerran found that the executive’s statement, which was made shortly before the election and was widely disseminated to members of the bargaining unit, reasonably tended to interfere with employee free choice in the election. Accordingly, Members Hirozawa and McFerran directed that the two challenged ballots be opened and counted, and a second election be held if the Petitioner does not prevail in the revised tally. If the Petitioner prevails, Members Hirozawa and McFerran directed the Regional Director to issue a certification of representative. Member Johnson dissented. He found that the vice president’s comment was too vague and attenuated to constitute a threat of reprisal if the employees voted for the Union. Accordingly, he would direct that an appropriate certification be issued after the two challenged ballots are opened and counted. Petitioner—International Brotherhood of Teamsters, Local 115. Members Hirozawa, Johnson and McFerran participated.
***
Jamestown Fabricated Steel and Supply, Inc. (03-CA-119345; 362 NLRB No. 161 Amended) Jamestown, NY, August 4, 2015. Errata (August 5, 2015 correction to decision).
The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union. Applying UGL-UNICCO Service Co., 357 NLRB No. 76 (2011), the Board found that the Respondent was precluded from refusing to recognize and bargain with the Union by operation of the successor bar. As such, the Board found it unnecessary to address the judge’s findings that the Union’s demand for recognition was timely and that the employees’ expressions of disaffection were tainted. The Board issued an affirmative bargaining order. In a concurrence, Member Johnson joined his colleagues in adopting the judge’s finding of a violation under applicable precedent, but he expressed his view that UGL-UNICCO was wrongly decided. In response to Member Johnson, Chairman Pearce and Member McFerran noted that no party in this case has argued that the Board should modify or overrule UGL-UNICCO, and that they saw no basis for departing from the successor bar doctrine articulated in that decision. Charge filed by Shopmen’s Local Union No. 470 of the International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers. Administrative Law Judge Mark Carissimi issued his decision on November 6, 2014. Chairman Pearce and Members Johnson and McFerran participated.
***
Central States Southeast and Southwest Areas, Health & Welfare and Pension Funds (13-CA-117018; 362 NLRB No. 155) Rosemont, IL, August 4, 2015.
The Board unanimously reversed the Administrative Law Judge, and found that the Respondent violated Section 8(a)(1) by threatening an employee with a 3-day suspension unless he removed a written disciplinary warning that he had posted in his work area. Further, a Board panel majority consisting of Members Hirozawa and McFerran also reversed the judge and found that the Respondent separately violated Section 8(a)(1) by orally promulgating an unlawful rule prohibiting employees from posting, in their work area, written disciplinary warnings issued to them by the Respondent. Member Johnson dissented in part, finding no promulgation of an unlawful rule inasmuch as the Respondent directed its instruction to remove the posted disciplinary warning solely to the affected employee and referred only to that employee’s specific posting. Member Johnson therefore determined that there was insufficient evidence to conclude that employees would reasonably have construed the instruction to an individual employee as the promulgation of a general rule. Administrative Law Judge Arthur J. Amchan issued his decision on June 5, 2014. Charge filed by Local 743, International Brotherhood of Teamsters. Members Hirozawa, Johnson, and McFerran participated.
***
M&M Affordable Plumbing, Inc. (13-CA-121459; 362 NLRB No. 159) Rockdale, IL, August 4, 2015.
The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(3) and (1) by discharging an employee because of his union and protected concerted activity. In adopting the judge’s finding, the Board did not rely on NLRB v. Erie Resistor Corp., 373 U.S. 221, 227 (1963), and the judge’s statement that the Respondent’s termination of the employee because he was a union member was inherently destructive of employee Section 7 rights. Charge filed by an individual. Administrative Law Judge Melissa M. Olivera issued her decision on November 19, 2014. Members Hirozawa, Johnson, and McFerran participated.
***
Katch Kan USA, LLC (16-CA-134743; 362 NLRB No. 162) San Antonio, TX August 4, 2015.
The Board affirmed the judge’s finding that the Employer violated Section 8(a)(1) by discharging an employee because he engaged in protected concerted activities with other employees by engaging in a work stoppage demanding that the Respondent rescind changes in employees’ schedules and wages and to confirm the rescission in writing.of his protected concerted activities. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC. Administrative Law Judge Joel P. Biblowitz issued his decision on April 14, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
***
Ameriguard Security Services, Inc. (05-RC-085844; 362 NLRB No. 160) Rockville, MD, August 4, 2015.
In this Decision on Review and Order, the Board reversed the Regional Director’s dismissal of a rival union’s election petition filed during the term of a contract extension. Before the contract extension, the employer and the incumbent union had agreed to split the existing unit into two parts. After administering the two parts under the same existing collective-bargaining agreement for a period, the parties executed two separate contract extensions, one for each unit. The Regional Director found the rival union’s petition to represent one of the two units was barred by the contract extension applicable to that unit. The Regional Director relied on Michigan Bell Telephone Co., 182 NLRB 632 (1970), to find that the creation of a new unit meant the usual rule that contract extensions do not bar otherwise timely petitions did not apply. The Board found Michigan Bell inapplicable to the facts of this case and reinstated the petition. Petitioner—United Security and Police Officers of America (“USPOA”). Other involved Union—United Union of Security Guards (“UUSG”). Chairman Pearce and Members Hirozawa and McFerran participated.
***
The Neiman Marcus Group, Inc. (31-CA-074295; 362 NLRB No. 157) Beverly Hills, CA, August 4, 2015.
Applying Murphy Oil USA, Inc., 361 NLRB No.72 (2014), a unanimous Board panel adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration program that employees would reasonably construe to prohibit the filing of unfair labor practice charges with the Board. A panel majority consisting of Members Hirozawa and McFerran also adopted the judge’s finding that the maintenance and enforcement of the arbitration program also violated Section 8(a)(1) because it requires employees, as a condition of employment, to waive their rights to pursue class or collective actions on employment-related claims in all forums, whether arbitral or judicial. Member Johnson dissented from this 8(a)(1) finding, citing his dissent in Murphy Oil. The Board, as did the judge, rejected the Respondent’s argument that the complaint should be dismissed as time-barred by Section 10(b), assertedly because the initial unfair labor practice charge was filed and served more than 6 months after the Charging Party signed the arbitration program documents and more than 6 months after her employment with the Respondent ended. The Board panel majority stated that what matters is that the Respondent maintained and enforced the arbitration program with respect to the Charging Party during the Section 10(b) period, and that this time span includes the relevant 6-month period that preceded the filing of the charge. The Board also rejected the Respondent’s contention that the Board, the General Counsel, the Regional Director, and the Administrative Law Judge were not authorized to bring or hear the complaint because the Board lacked quorum at the relevant times. Charge and amended charge filed by an individual. Administrative Law Judge Eleanor Laws issued her decision on February 6, 2014. Members Hirozawa, Johnson and McFerran participated.
***
Island Management Partners, Inc. (12-CA-140702; 362 NLRB No. 158) Jensen Beach, FL, August 4, 2015.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file a timely answer to the complaint and failure to establish good cause to excuse that failure, notwithstanding the Respondent’s unrepresented status and its late submission of a document purporting to respond to the complaint.
The Board found that the Respondent violated Section 8(a)(5) by failing to seek employees from the hiring hall operated by the Union and subcontracting unit work without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to this conduct and/or the effects of this conduct. The Board ordered the Respondent to bargain with the Union, on request; to comply with the Union’s hiring hall provisions, offer immediate and full employment to those applicants who would have been referred to the Respondent for employment by the Union were it not for the Respondent’s unlawful conduct, and to make them whole for any losses suffered by reason of the Respondent’s failure to hire them; to compensate the applicants for the adverse tax consequences, if any, of receiving lump-sum backpay awards; and to file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters.
The Board noted that employment and backpay issues will be resolved by a factual inquiry at the compliance stage of the proceeding, citing J. E. Brown Electric, 315 NLRB 620 (1994). Member Johnson noted that he does not now decide issues concerning the validity of J. E. Brown Electric. In addition, the Board declined at this time to order the relief the General Counsel requested in the complaint—to reimburse the employees for any out-of-pocket expenses incurred while searching for work as a result of the discrimination against them—noting that the relief sought would involve a change in Board law, that the appropriateness of this proposed remedy should be resolved after a full briefing by the affected parties, and that there has been no such briefing in this case. Charge filed by International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 500, AFL-CIO, CLC. Members Hirozawa, Johnson, and McFerran participated.
***
CC 1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers (24-CA-011035, et al.; 362 NLRB No.125) Cayey, PR, August 4, 2015. Errata correcting Board Decision and Order issued June 18, 2015. Errata Amended Decision.
***
Rush University Medical Center (13-CA-152806; 362 NLRB No. 163) Chicago, IL, August 7, 2015.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case. The Board rejected the Respondent’s argument that permitting a proliferation of elections is contrary to the Board’s Health Care Rule concerning appropriate units in acute health care facilities. Therefore, the Board found that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation proceeding, in which the Union was certified as the exclusive collective-bargaining representative of unit employees. The Board also found that although the complaint alleged that the Union requested that the Respondent meet to bargain with it as the exclusive collective-bargaining representative of the unit, the record established that the Union requested bargaining over terms and conditions of employment that would apply to the employees in the two voting groups, and the Respondent refused to do so. In addition, the Board denied the General Counsel’s request that the Respondent be ordered to bargain in good faith with the Union as the exclusive representative of the unit for the period set forth in Mar-Jac Poultry Co., 136 NLRB 785 (1962), because such a remedy is inappropriate where, as here, the underlying representation proceeding involved a self-determination election.
In the underlying representation proceeding, Member Johnson stated that he would have granted review in order to reexamine St. Vincent Charity Medical Center, 357 NLRB No. 79 (2011), but agreed to deny review in the absence of a majority to reconsider that case. Finding that the Respondent did not raise any new matters that were properly litigable in the unfair labor practice proceeding, he agreed that summary judgment was appropriate. Charge filed by Healthcare Professional, Technical, Office, Warehouse and Mail Order Employees Union, Local 743, International Brotherhood of Teamsters. Chairman Pearce and Members Johnson and McFerran participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
The Cogar Group, Ltd. (12-UD-149017) San Juan, Ponce, Ceiba, and Fajardo, PR, August 3, 2015. No exceptions having been filed to the Regional Director’s overruling of the Union’s objection to a mail ballot election held between April 27 and May 11, 2015, the Board adopted the Regional Director’s findings and recommendations, and certified that a majority of the employees eligible to vote have voted to withdraw the authority of Government Security Guards Association to require, under its agreement with the Employer, that the employees make certain payments to the Union in order to retain their jobs, in conformity with Section 8(a)(3). Petitioner—an individual.
Sensient Natural Ingredients LLC (32-RC-145527) Turlock, CA, August 3, 2015. No exceptions having been filed to the hearing officer’s overruling of the Employer’s objection to an election held March 13, 2015, the Board adopted the hearing officer’s findings and recommendations, and certified the Petitioner, International Brotherhood of Teamsters, Graphic Communications Conference, Local 388M, as the exclusive collective-bargaining representative of the employees in the appropriate unit.
Third Century Services (Belmont Facilities Management) (04-RC-149293) Philadelphia, PA, August 3, 2015. No exceptions having been filed to the hearing officer’s recommendation that the challenges to the ballots of two voters in an election held April 30, 2015 be overruled, the Board adopted the hearing officer’s findings and recommendations, and directed the Regional Director to open and count the challenged ballots and prepare a revised tally of ballots and issue the appropriate certification. Petitioner—National Union of Hospital and Health Care Employees District 1199C.
Transit Connection, Inc. (01-RC-145728) Edgartown, MA, August 4, 2015. The Board adopted the hearing officer’s finding that the Employer did not substantially comply with the requirements of Excelsior Underwear Inc., 156 NLRB 1236 (1966), when it provided the Petitioner with an Excelsior list containing numerous incomplete addresses. In adopting the hearing officer’s recommendation to sustain the Petitioner’s objection, the Board did not rely on the hearing officer’s consideration of whether the Petitioner was able to communicate with employees by alternative means in spite of the deficiencies in the Excelsior list. Member Miscimarra agreed that the Excelsior list problems described by the hearing officer warrant setting aside the election. Member Miscimarra, however, stated that he believes that potential alternative means of communication with unit employees may be among the factors affecting whether an election should be set aside because of flaws in an Excelsior list. Accordingly, the Board set aside the election held on March 18, 2015, and ordered that a new election be held. Petitioner—Amalgamated Transit Union, AFL-CIO, CLC, Local Division 1548. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Ryder Integrated Logistics (21-RC-145241) Riverside, CA, August 4, 2015. No exceptions having been filed to the hearing officer’s overruling of the Employer’s objections to an election held March 5, 2015, the Board adopted the hearing officer’s findings and recommendations, and certified the Petitioner, International Brotherhood of Teamsters, Local Union 166 as the exclusive collective-bargaining representative of the employees in the appropriate unit.
Shuttle Express, Inc. d/b/a Supershuttle Baltimore (05-RC-112774) Baltimore, MD, August 5, 2015. Order denying the Petitioner’s request for review of the Regional Director’s decision and order. The Petitioner sought to represent a unit of franchisee shuttle drivers and relief drivers. The Regional Director found that this case presented an almost identical question as in a prior case decided in November 2010, SuperShuttle Baltimore, 05-RC-16601. The parties had stipulated at the hearing to admit the prior record in Case 05-RC-16601 as joint exhibits and to limit the record in the present case to evidence of changed circumstances. The Regional Director found no reason to disturb the findings and conclusion that were reached in Case 05-RC-16601, as the Petitioner did not demonstrate a material change in circumstance since the prior case that would differentiate the current petition from the petition dismissed in Case 05-RC16601. He found that even if the Petitioner had demonstrated changed circumstances, and assuming, as the prior decision did, that franchisee shuttle drivers are not independent contractors, the franchisee shuttle drivers would nevertheless be statutory supervisors based on their authority to hire, assign, reward, and/or discharge relief drivers, using their independent judgment. The Regional Director dismissed the petition without reaching the issue of whether these drivers are independent contractors. Petitioner – United Food and Commercial Workers, Local 1994, MCGEO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Washington Shuttle, Inc. d/b/a Supershuttle Washington, D.C. (05-RC-112829) Washington, D.C., August 5, 2015. Order denying the Petitioner’s request for review of the Regional Director’s decision and order. The Petitioner sought to represent a unit of franchisee shuttle drivers and relief drivers. The Regional Director found that even assuming that the franchisee shuttle drivers are not independent contractors, the franchisee shuttle drivers are statutory supervisors because of their authority to hire, assign, reward and/or discharge relief drivers using their independent judgment. The Regional Director dismissed the petition without reaching the issue of whether these drivers are independent contractors. Petitioner – United Food and Commercial Workers, Local 1994, MCGEO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Professional Security Consultants, Inc. (29-RC-140188) Brooklyn, NY, August 6, 2015. The Board adopted the hearing officer’s recommendations to overrule the Employer’s objections an election and certify the Petitioner, Local 642, Security Alliance of Federated Employees Union, as the exclusive collective-bargaining representative of the employees in the appropriate unit. In agreement with the hearing officer, the Board found that a prounion supervisor did not engage in objectionable conduct warranting setting aside the election under the two-prong test of Harborside Healthcare, Inc., 343 NLRB 906 (2004). Chairman Pearce and Members Miscimarra and Hirozawa participated.
Time Warner Cable, Northeast, LLC (01-RC-145268) Pittsfield, MA, August 6, 2015. No exceptions having been filed to the hearing officer’s recommendations that the Union’s Objection No. 1 be overruled and that the Union’s Objection No. 3 be sustained, the Board adopted the hearing officer’s findings and recommendations and ordered that the election held on February 26, 2015 be set aside. Accordingly, the Board remanded the proceeding to the Regional Director for the holding of a new election. Petitioner—International Brotherhood of Electrical Workers, Local 2324, AFL-CIO.
C Cases
No unpublished unfair labor practice cases issued.
***
Appellate Court Decisions
Dodge of Naperville, Inc. and Burke Automotive Group, Inc., Board Case No. 13-CA-045399 (reported at 357 NLRB No. 183) (D.C. Cir. decided Aug. 4, 2015)
In a published opinion, the court enforced the Board’s order remedying a number of unfair labor practices by this small car dealership that operated at two locations. Key among those findings was the Board’s determination that the employer unlawfully withdrew recognition from Automobile Mechanics Local No. 701, International Association of Machinists and Aerospace Workers, AFL-CIO, when it closed one dealership location and informed the six mechanics in the bargaining unit that they could apply to work at its larger, non-unionized dealership for reduced wages and inferior benefits.
The Board (Chairman Pearce and Members Becker; Member Hayes dissenting in part) found, in agreement with the administrative law judge, that Dodge of Naperville and Burke Automotive Group constituted a single employer, that the employer violated Section 8(a)(5) of the Act by withdrawing recognition, repudiating its collective-bargaining agreement, failing to bargain over the effects of the relocation, and making unilateral changes. The Board also found, in agreement with the judge, that the employer made a variety of coercive threats and constructively discharged two employees. With regard to the withdrawal of recognition, the Board rejected the employer’s contention that it had no choice but to do so because the relocated employees had been absorbed into a larger unit of non-union employees at its second dealership. The Board found that the union had retained its status as bargaining representative, that the employer had a duty to bargain over the effects of the relocation, and that the unit remained appropriate after the relocation based on the Board’s assessment of the 20-year bargaining history and the terms of the collective-bargaining agreement that had been unlawfully repudiated.
On review, the court noted the settled principles that an employer generally is free to make decisions about the direction of its enterprise, including whether to shut down or relocate part of the business, but must, however, bargain with the union over the effects of that decision on unit employees. The scope of an employer’s duty to bargain over such effects, the court explained, depends on the nature of the change imposed, and that mandatory subjects of such bargaining include initial wages, benefits, seniority rights, and working conditions at the new location. The court then held that the duty to engage in effects bargaining persists even if the business decision would render the historic unit inappropriate for other purposes, and that the employer cannot avoid its duty to bargain by waiting until after the change has taken place and then claiming that the unit is no longer viable. Assessing the employer’s contentions in light of those principles, the court agreed with the Board that having unlawfully failed to bargain about effects, the employer’s unilateral changes to the unit’s working conditions did not render the historic unit inappropriate and did not justify the employer’s withdrawal of recognition.
Further, the court rejected the employer’s contention that the Board’s decision, issued on January 3, 2012, was invalid based on its claim that Member Becker’s recess appointment expired on December 17, 2011, rather than at noon on January 3, 2012, when the second session of the 112th Congress began. The court declined to address the employer’s alternative assertion that there was no evidence that the Board’s decision had issued before noon that day because the employer belatedly raised the argument for first time in its reply brief.
Because the employer did not challenge the other unfair labor practices, the court summarily upheld them and enforced the Board’s order in full.
The court’s decision may be found here.
***
Administrative Law Judge Decisions
T-Mobile USA, Inc. (01-CA-123183, et al.; JD(NY)-35-15) Hartford Connecticut, NY. Administrative Law Judge Raymond P. Green issued his decision on August 3, 2015. Charges filed by Communication Workers of America, AFL-CIO and Communication Workers of America, Local 1298, AL-CIO.
UNF, West, Inc. (21-CA-129446; JD(SF)-30-15) Moreno Valley, CA. Administrative Law Judge John J. McCarrick issued his decision on August 3, 2015. Charge filed by Teamsters, Chauffeurs, Warehousemen, Industrial and Allied Workers of America, Local 166, International Brotherhood of Teamsters.
Mobile USA, Inc. (01-CA-142030 and 10-CA-133833; JD(NY)-34-15) Augusta, ME. Administrative Law Judge Joel P. Biblowitz issued his decision on August 3, 2015. Charges filed by Communications Workers of America, AFL-CIO.
American Classic Construction, Inc. (07-CA-143306; JD-42-15) Bailey, MI. Administrative Law Judge Melissa M. Olivero issued her decision on August 4, 2015. Charge filed by an individual.
Custom Food Products, LLC, a wholly owned subsidiary of CTI Foods, LLC (09-CA-144165; JD(ATL)-13-15) Owingsville, KY. Administrative Law Judge Keltner W. Locke issued his decision on August 4, 2015. Charge filed by United Food & Commercial Workers International Union, Local 227.
Grill Concepts d/b/a The Daily Grill (31-CA-126475; JD(SF)-31-15) Los Angeles, CA. Administrative Law Judge Eleanor Laws issued her decision on August 6, 2015. Charges filed by Unite Here, Local 11.
Weavexx, LLC (15-CA-119783; JD(ATL)-15-15) Starkville, MS. Administrative Law Judge William Nelson Cates issued his decision on August 6, 2015. Charge filed by Teamsters Local Union 984.
Component Bar Products, Inc. (14-CA-145064; JD-45-15) St. Louis, MO. Administrative Law Judge Charles J. Muhl issued his decision on August 7, 2015. Charge filed by an individual.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.