Summary of NLRB Decisions for Week of December 1 - 5, 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
International Longshore and Warehouse Union, Local 19 and National Construction Alliance II and Pacific Northwest Regional Council of Carpenters and Seattle Tunnel Partners, a joint venture and Total Terminals International, LLC (19-CD-111765 and 111802; 361 NLRB No. 122) Seattle, WA, December 2, 2014.
This case involves a jurisdictional dispute, under Section 10(k) of the Act, between International Longshore and Warehouse Union, Local 19 and Pacific Northwest Regional Council of Carpenters (Carpenters) and International Union of Operating Engineers, Local 302 (Operating Engineers). The disputed work is the operation of a conveyor belt and barge winches used to transport excavated material away from a construction site where Seattle Tunnel Partners is currently constructing a double-deck highway beneath downtown Seattle. The Board awarded the work in dispute to employees represented by Carpenters and Operating Engineers based on the factors of collective-bargaining agreements, employer preference, current assignment, and economy and efficiency of operations.
Charges were filed by Carpenters and the National Construction Alliance II. Members Miscimarra, Johnson, and Schiffer participated.
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Brown & Pipkins, LLC d/b/a Acsential (05-CA-130620; 361 NLRB No. 105) Fort Belvoir, VA, December 2, 2014.
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 meet and bargain with the Union on reasonable dates and at reasonable times, or for in-person negotiations. The Board ordered the Respondent to, on request, to meet and bargain in good faith with the Union as the exclusive collective-bargaining representative of the unit employees and, if an understanding is reached, to embody the understanding in a signed agreement.
Member Schiffer observed that the complaint sought additional remedies requiring the Respondent to bargain on request within 15 days of a Board Order; bargain on request for a minimum of 15 hours per week until the parties reached an agreement, impasse, or agreed otherwise; prepare and submit to the Region and the Union written bargaining progress reports every 15 days; and make whole employee negotiators for earnings lost while attending bargaining sessions. She would have granted these additional remedies had they been requested in the General Counsel’s motion for default judgment. Charge filed by Service Employees International Union, Local 32 BJ. Chairman Pearce and Members Johnson and Schiffer participated.
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Durham School Services, L.P. (15-CA-129463; 361 NLRB No. 121) Milton, FL, December 4, 2014.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification refusal-to-bargain 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. Member Miscimarra noted that he dissented in part from the Board’s Decision and Certification of Representative in the underlying representation proceeding and would have remanded the case for a hearing on the Respondent’s Objection 1. Member Miscimarra stated that while he remains of that view, he agrees that the Respondent has not presented any new matters that are properly litigable in this unfair labor practice case. In light of this, and for institutional reasons, Member Miscimarra agreed with the decision to grant the motion for summary judgment. Charge filed by International Brotherhood of Teamsters, Chauffeurs, Allied-Industrial and Service Warehousemen and Helpers Local Union No. 991. Chairman Pearce and Members Miscimarra and Schiffer participated.
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DIRECTV U.S. DIRECTV Holdings LLC (21-CA-071591; 361 NLRB No. 124) Dominguez, CA, December 4, 2014.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification refusal-to-bargain 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. Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union and refusing to provide requested information since December 28, 2011.
The Board noted that at the time it issued its original Decision and Order in this proceeding, the composition of the Board included persons whose appointments had been challenged as constitutionally infirm. The Respondent filed a petition for review of the Board’s decision in the United States Court of Appeals for the Ninth Circuit, and the General Counsel filed a cross application for enforcement. Thereafter, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. Subsequently, the court of appeals remanded this case to the Board for further proceedings consistent with the Supreme Court’s decision.
In granting the motion for summary judgment, the Board rejected the Respondent’s challenge to the validity of the Union’s certification on the basis of its objections to the election. The Board found that all representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding.
The Board also found that there were no factual issues warranting a hearing regarding the Union’s information requests. The Respondent argued that some of the requested information was not presumptively relevant because it related to employees who are not part of the bargaining unit, and that certain requests for information were not presumptively relevant because they were outside the six month statute of limitations for the Union to file an unfair labor practice charge. The Board found that the assertion that the information requests pertained to nonunit employees does not excuse the Respondent’s failure to comply with the request to the extent that it could be construed to pertain to unit employees. The Board then found that the Respondent did not need to comply with certain information requests that could not be so construed.
The Board agreed with the Respondent that, to the extent the information requests seek information prior to the date of the election, that information is not presumptively relevant, and that issue was remanded to the Regional Director for further appropriate action. However, the Board found that information dating back to the date of the election is presumptively relevant to the Union’s role as bargaining representative, and ordered compliance in that respect.
The Board noted that the Union requested access to the company intranet to the same degree unit employees have such access so the Union can review what material is available to all employees. The Board acknowledged that it has not passed on whether information posted on a company intranet is presumptively relevant, and declined to pass on that question in a motion for summary judgment proceeding, without the benefit of a full record. Accordingly, the Board denied summary judgment with respect this paragraph of the Union’s information request, and remanded that issue to the Regional Director for further appropriate action.
In sum, the Board ordered the Respondent to furnish the Union with the information it requested, with the exception of information pertaining to nonunit employees; information predating the election; information relating to customer complaints; the request for access to the company’s intranet; and information that is duplicative of information already provided.
Member Johnson noted that he did not participate in the underlying representation proceeding and expressed no opinion as to whether it was correctly decided. He agreed that the Respondent did not present any new matters that were properly litigable in the unfair labor practice case.
Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 947. Chairman Pearce and Members Hirozawa and Johnson participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Swissport Cargo Services, L.P. (12-RC-137010) Miami, Florida, December 2, 2014.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of election on the ground that it did not raise substantial issues warranting review, and denied the Employer’s request for a stay of election as moot. The Regional Director concluded that the Board has jurisdiction over the Employer based on the factual similarity of this matter to recent cases in which the National Mediation Board (NMB) has declined jurisdiction. Member Miscimarra, dissenting, would grant review to refer this case to the NMB for its opinion with regard to the jurisdictional issue based, among other things, his views that there is substantial evidence that multiple carriers provide daily on-site supervision of the contractor’s employees, which has been relied upon by the NMB when it has asserted jurisdiction, which has been absent or negligible in cases where the NMB has declined to exercise jurisdiction, and which may have been afforded insufficient weight by the Regional Director, citing Federal Express Corp., 317 NLRB 1155 (1995). Petitioner—International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Cargill, Inc. (21-RC-136849) Fullerton, CA, December 3, 2014. A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the basis that it raised no substantial issues warranting review. In dissent, Member Miscimarra would grant review because he found that the Employer has raised substantial issues regarding the appropriateness of the petitioned-for unit. Petitioner—United Food & Commercial Workers Union Local No. 324. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
Coastal Sunbelt Produce, Inc. (05-CA-036362) Savage, MD, December 5, 2014. The Board issued an Order rescinding the Decision and Order it issued on October 30, 2014 (361 NLRB No. 85).
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
CSC Holdings, LLC and Cablevision Systems New York City Corporation, a Single Employer (02-CA-085811; JD(NY)-47-14) Bronx, NY and Brooklyn, NY. Administrative Law Judge Steven Fish issued his decision on December 4, 2014. Charges filed by Communication Workers of America, AFL-CIO.
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