Summary of NLRB Decisions for Week of December 5-9, 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 the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
URS Federal Services, Inc. (20-RC-170461; 365 NLRB No. 1) Herlong, CA, December 8, 2016.
The Board granted the Petitioner’s Request for Review of the Acting Regional Director’s Decision on Objections and Certification of Results, in which the Acting Regional Director overruled an objection involving the Employer’s failure to serve the voter list. Section 102.62(d) of the Board’s Rules, as amended, requires employers in representation cases to serve the voter list on the other parties and to file a certificate of service indicating that it has done so. In this case, although the Employer submitted a voter list to the regional office, it neither served it on the Petitioner, nor filed a certificate of such service, nor offered any explanation for its failures. On review, the Board majority (Chairman Pearce and Member McFerran) noted that, when Section 102.62(d) was amended in 2014, the Board deliberately eliminated the prior two-step procedure—under which the employer would file the list with the regional director and then the regional director would forward it to the other parties—because it had caused delay and unnecessary litigation. The clear language of Section 102.62(d) shows that the employer’s service is now mandatory; that failure to comply shall be grounds for setting aside the election whenever proper objections are filed; and that regional directors do not have discretion to excuse such a failure. Member Miscimarra, dissenting, would find that regional directors have discretion to excuse incomplete service under the circumstances presented here. Petitioner – International Association of Machinists and Aerospace Workers, District Lodge 725, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Southern Bakeries, LLC (26-RD-081637) Hope, AR, December 9, 2016. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision to Dismiss the Petition on the ground that it raised no substantial issues warranting review. In denying review, the Board did not rely on any post-petition conduct in the excerpts the Regional Director cited from Southern Bakeries, LLC, 364 NLRB No. 64 (2016). The Board further found that it was unnecessary to rely on the Regional Director’s citation of either (1) the Employer’s alleged unlawful discharge of Chief Steward Louis Page, which was deferred to the parties’ grievance-arbitration procedure, or (2) the Employer’s alleged unlawful encouragement and support in the filing of a previous decertification petition, which was subject to an informal settlement agreement among the parties. Petitioner – an individual. Union – Bakery, Confectionery, Tobacco and Grain Millers Union, Local 111. Chairman Pearce and Members Miscimarra and McFerran participated.
Duke University (10-RC-187957) Durham, NC, December 9, 2016. The Board granted the Employer’s special appeal of the Regional Director’s denial of additional time to file a post-hearing brief, and, accordingly, extended the due date to December 21, 2016.
C Cases
UPMC and its subsidiaries UPMC Presbyterian Shadyside and Magee-Womens Hospital of UPMC, single employer, d/b/a Shadyside Hospital and/or Presbyterian Hospital and/or Montefiore Hospital and/or Magee-Womens Hospital (06-CA-081896) Pittsburgh, PA, December 5, 2016. A Board majority (Chairman Pearce and Member McFerran) denied the Respondents’ motion for reconsideration of the Board’s Decision and Order reported at 362 NLRB No. 191 (2015), and to reopen the record. The majority found that the Respondents neither identified any material error nor demonstrated extraordinary circumstances warranting reconsideration under the Board’s Rules and Regulations. The majority observed, among other things, that it had previously addressed the Respondents’ arguments about Purple Communications, Inc., 361 NLRB No. 126 (2014). The majority also found that the Respondents did not identify any basis, under the Rules and Regulations, for why the record should be reopened, explaining, among other things, that the Respondents had previously litigated the issue of “special circumstances” under the Solicitation Policy. Finally, the majority rejected the Respondents’ arguments relating to other rules violations that the Board had found, on the ground that the Respondents were merely asking the Board to revisit the factual and legal bases for the findings.
Member Miscimarra would have granted the motions. Discussing Purple Communications, he stated that he would have granted the motion for reconsideration based on the Board’s failure to remand the case to provide an opportunity for the Respondents to litigate the issue of whether “special circumstances” privilege their Solicitation Policy. He would have granted the motion to reopen the record because, in his view, the Respondents, under Purple Communications, were unreasonably denied the opportunity to introduce evidence of special circumstances on remand. Although he agreed that the Respondents had not otherwise established grounds for reconsideration or reopening the record, he disagreed with the merits of the earlier decision in other respects, and he adheres to his dissent in Purple Communications. Finally, as it relates to the other rules violations, he would apply the standard he set forth in his partial dissent in William Beaumont Hospital, 363 NLRB No. 162 (2016). Charge filed by SEIU Healthcare Pennsylvania, CTW, CLC. Chairman Pearce and Members Miscimarra and McFerran participated.
W.B. Mason Co., Inc. (01-CA-161120, et al.) Boston, MA, December 5, 2016. No exceptions having been filed to the November 4, 2016 decision of Administrative Law Judge Mark Carissimi’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order. Charges filed by International Brotherhood of Teamsters, Local 25.
Delek Refining, Ltd. (16-CA-161390, 16-CA-165355 and 16-CA-173498) Tyler, TX, December 7, 2016. No exceptions having been filed to the October 19, 2016 decision of Administrative Law Judge Robert A. Ringler’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order. Charges 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
Citigroup Technology, Inc., and Citicorp Banking Corporation (parent), a subsidiary of Citigroup, Inc., Board Case No. 12-CA-130742 (reported at 363 NLRB No. 55) (5th Cir. decided December 8, 2016)
In an unpublished per curiam opinion, the court granted the Employer’s petition for review after briefing, but without oral argument. Based on “the Board’s candid—and greatly appreciated—concession” that the case was contrary to the in-circuit precedent of Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), petition for reh’g en banc denied (May 13, 2014), petition for certiorari filed (Sept. 9, 2016), and D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), petition for reh’g en banc denied (Apr. 16, 2014), the court denied enforcement of the Board’s order that found the Employer violated Section 8(a)(1) of the Act by maintaining, as a condition of employment, an arbitration agreement that requires employees to waive their right to maintain class or collective actions in any forum, arbitral or judicial.
The court’s opinion is here.
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Administrative Law Judge Decisions
PAE Applied Technologies, LLC (28-CA-170331; JD(SF)-46-16) Las Vegas, NV. Administrative Law Judge Amita Baman Tracy issued her decision on December 5, 2016. Charge filed by Security Police Association of Nevada.
Ozburn-Hessey Logistics, LLC (26-CA-023497, et al.; JD-115-16) Memphis, TN. Administrative Law Judge Mark Carissimi issued his decision on December 6, 2016. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC.
Cordúa Restaurants, Inc. (16-CA-160901, et al.; JD-117-16) Houston, TX. Administrative Law Judge Sharon Levinson Steckler issued her decision on December 9, 2016. Charges filed by individuals.
The Gulfport Stevedoring Association-International Longshoremen’s Association Container Royalty Plan (15-CA-096939 and 15-CB-096934; JD-116-16) Gulfport, MS. Administrative Law Judge Eric M. Fine issued his decision on December 9, 2016. Charges filed by an individual.
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