Summary of NLRB Decisions for Week of December 14 - 18, 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

One Sustainable Method Recycling, LLC  (15-CA-147008; 363 NLRB No. 67)  Little Rock, AR, December 14, 2015.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint allegations.  The complaint alleged that the Respondent, because of the employees’ protected concerted activities, told them they could quit if they did not like its policies and statements; prohibited them from taking pictures at its facility; threatened them with arrest and termination; and caused an employee to quit by threatening him with property damage, arrest, and termination. Accordingly, the Board ordered the Respondent to cease and desist from taking these actions and to offer to reinstate the employee who it caused to quit and make him whole for his loss of earnings and benefits. 

Charge filed by an individual.  Chairman Pearce and Members Hirozawa, and McFerran participated.

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Cobalt Coal Ltd., Westchester Coal, L.P., and Cobalt Coal Corp. Mining Inc., a Single Employer  (09-CA-112146; 363 NLRB No. 64)  Hensley, WV, December 14, 2015.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the compliance specification.  The Board ordered the Respondent to make the employees whole by paying them the amounts specified in the compliance specification, plus additional backpay that may accrue in the event mining operations resume at the facility, plus interest.

Charge filed by United Mine Workers of America, AFL-CIO.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Olean General Hospital (03-CA-097918, et al.; 363 NLRB No. 62) Olean, NY, December 14, 2015.  Correction to the Board’s December 11, 2015 Decision and Order.  Errata   Amended Decision.

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St. Francis Regional Medical Center  (18-CA-092542 and 18-CA-094066; 363 NLRB No. 69)  Shakopee, MN, December 16, 2015.

A Board panel majority consisting of Chairman Pearce and Member McFerran found that this case is inappropriate for deferral to arbitration under Collyer Insulated Wire. The majority agreed with the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(3) and (1) by terminating the employment of two unit employees, one of whom was the union steward.  The majority also agreed that the Respondent violated Section 8(a)(1) by its questioning of the steward in connection with her processing a possible grievance and by its threat of possible discipline should the steward fail to cooperate with the Respondent by revealing certain information.  It further adopted the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing to timely respond to the Union’s information requests in connection with the two terminations.  In so finding, the majority rejected the Respondent’s argument that the consolidated complaint and amended consolidated complaint were invalid because the Board lacked a quorum at the time they were issued.  It also rejected the Respondent’s contention that the D.C. Circuit’s decision in SW General, Inc. v. NLRB provided additional support for the Respondent’s exceptions to the judge’s decision.

Member Miscimarra dissented in part and would defer the Section 8(a)(3) and (1) allegations regarding the two terminated employees to arbitration and dismiss those allegations, retaining jurisdiction for limited purposes. He agreed with the majority in finding the Respondent violated Section 8(a)(5) and (1) by unreasonably delaying its response to the Union’s information request.

Charges filed by SEIU Healthcare Minnesota.  Administrative Law Judge Melissa M. Olivero issued her decision on June 12, 2013.   Chairman Pearce and Members Miscimarra and McFerran participated.

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Kmart Corporation, a subsidiary of Sears Holdings Corporation  (06-CA-091823 and 06-CA-100022; 363 NLRB No. 66)  Erie, PA, December 16, 2015.

Relying on D.R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part, No. 14-60800, -- F.3d.-- (5th Cir. Oct. 26, 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s finding that Respondent Kmart Corporation violated Section 8(a)(1) by maintaining an arbitration policy that requires employees, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial, unless an employee follows a procedure to opt out of the policy during a one-time initial window of opportunity.  Member Miscimarra, dissenting, contended that the Act does not prohibit agreements that waive class and collective actions, especially when, as here, they provide an opportunity for employees to opt out.  There were no exceptions to the Administrative Law Judge’s dismissal of the complaint allegations against Respondent Sears Holding Corporation.

Charges filed by an individual.  Administrative Law Judge David I. Goldman issued his decision on November 19, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Terraprise Holdings, Inc. d/b/a Global Recruiters of Winfield  (13-CA-108187; 363 NLRB No. 68)  Wheaton, IL, December 16, 2015.

The Board unanimously adopted the Administrative Law Judge’s findings that the Respondent did not violate Section 8(a)(1) by changing or limiting the Charging Party’s work assignments and opportunities, or by directing an employee not to discuss his work assignments with the Charging Party.  A Board panel majority, consisting of Members Miscimarra and McFerran, adopted the Administrative Law Judge’s dismissal of the allegation that the Respondent violated Section 8(a)(1) by discharging the Charging Party for engaging in protected concerted activity.  Member Hirozawa, dissenting, would find that the Respondent violated Section 8(a)(1) by discharging the Charging Party in retaliation for his protected activity.

Charge filed by an individual.  Administrative Law Judge Geoffrey Carter issued his decision on February 26, 2014.  Members Miscimarra, Hirozawa, and McFerran participated.

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Vigor Industrial, LLC  (19-CA-135538; 363 NLRB No. 70)  Portland, OR, December 16, 2015.

A unanimous panel of the Board affirmed the Administrative Law Judge’s findings that the Respondent did not present its changes to the existing tobacco policy to the Union as a fait accompli and therefore it did not violate Section 8(a)(5) and (1) by implementing its new tobacco-free policy.  The Board relied on the Judge’s finding that the parties reached agreement at a bargaining session on August 29, 2014, but did not rely on the Judge’s rationale that the Union had waived decisional bargaining.  Accordingly, the Board dismissed the complaint.

Charge filed by International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local Union 104, AFL-CIO, Portland Metal Trades Council, Puget Sound Metal Trades Council, Metal Trades Department, AFL-CIO, and Pacific Coast Metal Trades District Council.  Administrative Law Judge Mary Miller Cracraft issued her decision on September 22, 2015.  Members Miscimarra, Hirozawa, and McFerran participated.

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Rhino Northwest, LLC  (19-CA-160205; 363 NLRB No. 72)  Fife, WA, December 17, 2015.

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 were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board found no merit to the affirmative defense raised in the answer to the complaint and based upon Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. 727 F.3d 552 (6th Cir. 2013) that the Board lacked a constitutional majority.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union.  Charge filed by Local No. 15, International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United States, its Territories and Canada, AFL-CIO.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Boeing Company  (19-CA-128941; 363 NLRB No. 63)  Puget Sound, WA, December 17, 2015.

In agreement with the Administrative Law Judge, the Board found that the Respondent violated Section 8(a)(5) and (1) when it failed to provide information requested by the Union relating to the Respondent’s plans to relocate unit work from the Puget Sound area.

Charge filed by Society of Professional Engineering Employees in Aerospace, affiliated with International Federation of Professional & Technical Engineers, Local 2001.  Administrative Law Judge Dickie Montemayor issued his decision on July 14, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Employers Resource  (31-CA-097189; 363 NLRB No. 59)  San Marcos, CA, December 17, 2015.

Relying on D.R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part, No. 14-60800, -- F.3d.-- (5th Cir. Oct. 26, 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining and enforcing an arbitration provision that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  The Respondent provides human resources to clients, and in doing so gives to its clients an employment agreement containing the arbitration provision at issue.  The Charging Party employee worked for Respondent’s client, Beth’s Kitchen (“BK”) and signed the agreement containing the provision.  After the Charging Party stopped working for BK, she filed a wage and hour suit in the Los Angeles Superior Court, “on behalf of herself and all other persons similarly situated,” naming both BK and the Respondent, among others, as defendants.  The Respondent filed a motion to stay the Charging Party’s suit and to compel individual arbitration, which the court granted.  The Board panel majority rejected the Respondent’s arguments that (1) Section 10(b) bars the complaint; (2) the Charging Party’s class action suit was not protected activity; and (3) the Charging Party was no longer an employee protected by the Act when she filed the suit.  The majority, relying on Countrywide Financial Corporation, 362 NLRB No. 165 (2015), also rejected the Respondent’s argument that the arbitration provision is lawful because it does not expressly bar collective action.  Finally, the Board, adopting the judge’s reasoning, rejected the Respondent’s arguments that D.R. Horton and Murphy Oil are not applicable this case because:  (1) the Respondent is not the Charging Party’s common law employer; (2) the provision was not a mandatory condition of employment; (3) the Respondent did not maintain the Agreement; and (4) the Charging Party can still pursue her class action against BK.  Member Miscimarra dissented from these findings for the reasons set forth in his partial dissenting opinion in Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at 22–35 (2014).

Charges filed by an individual. Administrative Law Judge Jeffrey D. Wedekind issued his decision on May 18, 2015.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No unpublished representation cases issued.

C Cases

International Union of Operating Engineers, Local 18, and Its Agent, PCS Builders, LLC  (08-CB-147620)  Akron, OH, December 14, 2015.  The Board denied Local 18’s Motion to Make Charged Party’s Petition to Revoke Subpoena, Region 8’s Response in Opposition Thereto, Region 8’s Order Referring the Matter to the Board, and the Board’s Decision Thereto Part of the Record, without prejudice to renewal at the appropriate time in a formal proceeding.  Charge filed by Laborers’ Local Union No. 894.  Chairman Pearce and Members Hirozawa and McFerran participated.

NBC Universal, Inc.  (02-CA-039372)  New York, NY, December 14, 2015.  The Board issued an Order denying the General Counsel’s motion for summary judgment, which was joined by the Union.  The Board found that the General Counsel and the Union failed to establish that there are no genuine issues of material fact in this proceeding and that they are entitled to judgment as a matter of law.  Charge filed by National Association of Broadcast Employees & Technicians, Communication Workers of America, AFL-CIO.  Chairman Pearce, Members Hirozawa and McFerran participated.

Elite Ambulance Inc.  (31-CA-122353, et al.)  Los Angeles, CA, December 16, 2015.  The Board denied the Respondent’s motion for summary judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing, and that it is entitled to judgment as a matter of law.  Charge filed by International Association of EMTs and Paramedics (IAEP)/NAGE/SEIU 5000.  Chairman Pearce and Members Hirozawa and McFerran participated.

New Vista Nursing and Rehabilitation, LLC  (22-CA-029988)  Newark, NJ, December 17, 2015.  The Board denied the Respondent’s second, third, and fourth motions for reconsideration, in which the Respondent asserted that the Board lacked a quorum when the underlying decision issued and that the term of a participating member expired before the issuance of the previous denial of reconsideration.

Charge filed by 1199 SEIU United Healthcare Workers East, NJ Region.  Members Miscimarra, Hirozawa, and McFerran participated.

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Appellate Court Decisions

Salem Hospital Corporation, Board Case No. 04-CA-064455 (reported at 357 NLRB No. 119) (D.C. Cir. decided December 15, 2015)

In a published opinion, the court in this test-of certification case enforced the Board’s order against this operator of an acute care facility in Salem, New Jersey, requiring it to bargain with the Health Professionals and Allied Employees, AFT/AFL-CIO, as the certified representative of a unit of charge nurses.

In the underlying representation case—which had an extensive procedural history—the Board certified the union after the Regional Director found that the charge nurses (except two) were not statutory supervisors, and that, even if they were in fact supervisors, they did not engage in any conduct that would have tainted the election.  Before the Board in the unfair-labor-practice proceeding, the hospital asserted a myriad of procedural errors and incorrect rulings during the representation case.  The Board found that all of the hospital’s assertions were matters that were , or could have been, litigated in the representation case, issued the bargaining order, and subsequently issued an erratum and denied the hospital’s motion for reconsideration.

On review, the court held that the Board’s findings on supervisory authority and lack of taint were supported by substantial evidence.  Regarding the hospital’s assertions that there were procedural errors in the Board’s proceedings, the court concluded that, although there were missteps made by the Board and its agents, the hospital had not demonstrated that it suffered any resulting prejudice.  Accordingly, the court denied its petition for review, and enforced.

The court’s decision is here.

Pallet Companies, Inc., Board Case No. 04-CA-128224 (reported at 361 NLRB No. 33) (D.C. Cir. decided December 18, 2015)

In an unpublished judgment, the court in this test-of certification case enforced the Board’s order against this company engaged in the collection, repair, and distribution of wooden shipping pallets in Burlington, New Jersey.  The Board’s order requires the employer to bargain with the United Food and Commercial Workers Union, Local 1360, as the certified representative of a unit of truck drivers, nailers, forklift drivers, and saw room operators, after the union won an election in November 2012 on a vote of 23-20.

In the representation case, the Board certified the union after an administrative law judge, sitting as hearing officer, issued a report finding that the employer’s three election objections lacked merit and recommending they be overruled.  Specifically, the judge found that a number of alleged threats by prounion employees were not supported by the credited evidence, and that a prounion employee who was a key organizer was not, as the employer alleged, a union agent, nor had drugs sales he facilitated had any effect on the election.

On review, the court held that the Board’s findings and conclusions upon which its overruling of the objections was based were reasonable and supported by substantial evidence.  Thus, the court denied the petition for review and enforced.

The court’s unpublished judgment is here.

Big Ridge, Inc., Board Case No. 14-CA-030379 (reported at 361 NLRB No. 149) (7^th Cir. decided December 18, 2015)

In a published opinion, the court granted enforcement of the Board’s order in this case in which the Board consolidated for hearing election objections and unfair-labor-practice allegations resulting from a May 2011 election in which a unit of 440 production and maintenance workers at this coal mine in Equality, Illinois, chose to be represented by the United Mineworkers of America.  In doing so, the court rejected the employer’s contention that the Board lacked jurisdiction to issue its order because the Seventh Circuit had previously, post-Noel Canning, denied enforcement on the basis of the Board’s earlier lack of quorum without explicitly remanding the case to the Board.

Dispensing with the employer’s jurisdictional challenge, the court (Circuit Judges Flaum, Manion, and Rovner) explained that “[w]e expected the Board to consider the case anew once it regained a quorum, just as the Eighth Circuit did” in NLRB v. Whitesell Corp., 638 F.3d 883, 889 (8th Cir. 2011) (noting that the court “expected that the Board would visit the merits of this case again”).  The court also was “guided by the analysis of Huntington Ingalls Inc. v. NLRB,” __ F. App’x __, No. 14-2051, 2015 WL 7423185, at *1, *3 (4th Cir. Nov. 23, 2015) (per curiam), “in which the Fourth Circuit held that the Board properly considered a case anew after the court had denied enforcement of the earlier Board order based on Noel Canning and had not explicitly remanded the proceedings back to the Board.”  Further, the court agreed with the Fourth Circuit’s statement that “[a] decision finding the lack of a proper quorum clearly contemplates further Board action, and, thus, the Board here did not err when it revisited [the] challenges to the union election[].”  Finally, the court rejected the employer’s reliance on different cases in which courts denied enforcement without remanding after deciding the merits of the case.

Before the court, the employer did not challenge the Board’s findings that it violated Section § 8(a)(1) of the Act, including its threats to employees that it would close the mine if the union were elected and that employees could suffer job loss for supporting the union  The court summarily enforced those portions of the Board’s order.  The employer instead challenged the Board’s finding that it violated Section 8(a)(3) of the Act by discharging an active and well-known union supporter, arguing that it had not acted with union animus and had lawfully discharged him for threatening conduct that presented serious safety concerns.  Under Wright Line, the court found the Board’s animus finding supported by the employee’s protected activities, the decision makers’ awareness of those activities, and the timing of the discharge.  The court rejected the employer’s contention that the Board had not shown that the decision makers “specifically harbored antiunion animus,” noting that “even without this specific finding, there is substantial circumstantial evidence that [the employer]’s antiunion animus motivated the [discharge] decision.”  Regarding the employer’s affirmative defense based on safety concerns, the court held that the Board “properly found that this was a pretextual justification.”

Judge Manion wrote separately, concurring in part and dissenting in part.  Regarding the challenge to the Board’s jurisdiction, he agreed the case was “properly before the Board a second time,” but explained his view that the prior “mandate, which is by its nature an order directing the Board to act on the final judgment, implicitly remanded the case.”  On the merits, he dissented.

The court’s opinion is here.

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Administrative Law Judge Decisions

Liberty Glass & Metal, Inc.  (31-CA-149721, 31-CA-151870 and 31-RC-147046; JD(SF)-50-15)  Upland, CA.  Administrative Law Judge Ariel L. Sotolongo issued his decision on December 15, 2015.  Charges filed by Painters and Allied Trades District Council 36.

Campaign for the Restoration and Regulation of Hemp, THCF, and Presto Quality Care Corporation, a single employer and/or joint employers  (19-CA-143377; JD(NY)-45-15)  Portland, OR.  Administrative Law Judge Joel P. Biblowitz issued his decision on December 17, 2015.  Charge filed by an individual.

American Medical Response West  (32-CA-147259 and 32-CA-149437; JD(SF)-51-15)  Stockton, CA.  Administrative Law Judge Eleanor Laws issued her decision on December 17, 2015.  Charges filed by United Emergency Medical Service Workers, AFSCME Local 4911, AFL-CIO.

Oliva Supermarkets LLC and RL Markets I LLC, alter egos  (22-CA-130315; JD(NY)-42-15)  Whippany, NJ.  Administrative Law Judge Steven Fish issued his decision on December 18, 2015.  Charge filed by United Food and Commercial Workers, Local 464A.

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