Summary of NLRB Decisions for Week of February 23 - 27, 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
Battle’s Transportation, Inc. (05-CA-098088, et al.; 362 NLRB No. 17) Washington, DC, February 24, 2015.
The Board unanimously adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) and (1) when it ignored an employee’s seniority regarding a work assignment to a higher-paying driving route, and in suspending and discharging him in retaliation for his activities as union steward; and violated Section 8(a)(1) of the Act in requesting removal of that employee as union steward. A Board panel majority consisting of Chairman Pearce and Member McFerran reversed the judge and found that the Respondent’s confidentiality agreement barring discussions about investigations by outside agencies, among other things, was unlawful. The majority also reversed the judge and find that the Respondent’s issuance of a memo instructing drivers not to communicate “any Battle’s company business” with passengers was unlawfully overbroad. Member Johnson dissented in part, and would affirm the judge’s findings that the confidentiality agreement and memo were lawful. Administrative Law Judge Arthur J. Amchan issued his decision on March 26, 2014. Charges filed by an individual. Chairman Pearce and Members Johnson and McFerran participated.
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McKenzie-Willamette Regional Medical Center Associates, LLC, d/b/a McKenzie-Willamette Medical Center (19-CA-119098; 362 NLRB No. 20) Springfield, OR, February 24, 2015.
The Board, rejecting the Respondent’s argument that the appointment of Ronald K. Hooks as Regional Director for Region 19 was invalid, adopted the Administrative Law Judge’s findings that the Respondent unlawfully failed to provide certain information that was requested by the Union in connection with bargaining for a successor collective-bargaining agreement and that the Respondent unreasonably delayed providing certain other requested information. The Board also denied the Respondent’s motion to reopen the record to admit additional evidence because the proffered evidence had no bearing on the relevance or necessity of the requested information. Administrative Law Judge Dickie Montemayor issued his decision on November 4, 2014. Charge filed by Service Employees International Union Local 49, CTW-CLC. Chairman Pearce and Members Miscimarra and McFerran participated.
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United Parcel Service of America, Inc. (16-CA-028064, et al.; 362 NLRB No. 22) Texarkana, AR, February 26, 2015.
The Board affirmed the Administrative Law Judge’s dismissal of the complaint alleging that the Respondent violated the Act by failing to provide certain information requested by the Union. The Board found that (1) the Respondent rebutted the presumption of relevance with respect to some of the information requests by showing that it timely raised legitimate concerns over the burdensomeness and overbreadth of the requests, to which the Union did not respond adequately; (2) some of the information requests were resolved by an informal settlement agreement between the parties; and (3) the Respondent complied with the settlement agreement and did not commit any post-settlement violations. Administrative Law Judge Keltner W. Locke issued his decision on August 15, 2013. Charges filed by International Brotherhood of Teamsters, Local Union 373. Members Miscimarra, Hirozawa, and McFerran participated.
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Professional Medical Transport, Inc. (28-CA-089300 and 28-CA-099144; 362 NLRB No. 19) Mesa, AZ, February 26, 2015.
The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) and (1) by: (1) unilaterally shutting down its ambulance unit 603 in August 2012, without providing notice and an opportunity to bargain over the decision and its effects; and (2) changing the posting location and duties of ambulance unit 284 in March 2013, without providing notice and an opportunity to bargain over the effects of the decision. The Board also found that the Respondent violated Section 8(a)(3) and (1) by retroactively issuing a discriminatory suspension to an employee and union officer in August/September 2012. Administrative Law Judge Jeffrey D. Wedekind issued his decision on January 9, 2014. Charges filed by Independent Certified Emergency Professionals, Local No. 1. Chairman Pearce and Members Johnson and McFerran participated.
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Rush University Medical Center (13-CA-139088; 362 NLRB No. 23) Chicago, IL, February 27, 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 the addition of the patient care technician classification to the existing unit following a self-determination election was inconsistent with the Board’s Health Care Rule concerning appropriate units and would result in a proliferation of units. In addition, the Board found that three subsequent petitions that the Respondent relied on in opposing the General Counsel’s motion did not constitute newly discovered evidence for purposes of the representation proceeding. 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.
In the underlying representation proceeding, Members Miscimarra and Johnson stated that they 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, they agreed that summary judgment was appropriate.
Charge filed by Healthcare Professional, Technical, Office, Warehouse, Mail Order, Employees Union, Local 743, IBT. Members Miscimarra, Hirozawa, and Johnson participated.
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Corliss Resources, Inc. (19-CA-093237, et al.; 362 NLRB No. 21) Lake Tapps, WA, February 27, 2015.
The Board, by unanimous vote, adopted the Administrative Law Judge’s findings that the Respondent discharged an employee in violation of Section 8(a)(3), but was not shown to have unlawfully suspended a different employee for one day or to have assigned preferred work to antiunion drivers. The Board did not reach the judge’s finding that the first employee’s discharge also violated Section 8(a)(4). The Board also found unanimously, contrary to the judge, that the Respondent’s dispatcher twice called drivers “backstabbers” for supporting the Union, and that the Respondent unlawfully advanced an employee’s start time to further isolate him from other drivers, in violation of Section 8(a)(1). Member Miscimarra, while agreeing that both of the dispatcher’s “backstabber” statements were unlawful, found it unnecessary to reach the issue of whether, in one instance, the affected employee was engaged in concerted activity during his conversation with the dispatcher. Administrative Law Judge Jeffrey D. Wedekind issued his decision on March 24, 2014. Charges filed by Teamsters Local 174, affiliated with The International Brotherhood of Teamsters. Members Miscimarra, Hirozawa, and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Global Contact Services, Inc. (29-RC-134071) Long Island City, NY, February 23, 2015. The Board adopted the Regional Director’s recommendation to overrule all but two of the Employer’s objections to an election held September 10-13, 2014. The Employer excepted to the Regional Director’s refusal to consider evidence of attempted vote buying by Petitioner Local 621, United Construction Trades & Industrial Employees, and therefore the Regional Director’s overruling of this objection. The Employer had not, in its objections, specifically alleged that Local 621 had attempted to buy votes, but in support of its other objections the Employer proffered evidence that Local 621 offered to pay an employee money as an inducement to vote for Local 621 and to persuade other employees to vote for Local 621. As the Employer had not shown that this evidence was newly discovered or previously unavailable, the Regional Director refused to consider it. In its exception, the Employer argued that the evidence was related to an objection that alleged provision of “substantial benefits including food and clothing, such as t-shirts,” as well as catch-all language in its objections. In rejecting this argument, a Board panel majority consisting of Chairman Pearce and Member Hirozawa stated that the Employer was well aware of how to specifically allege the conduct at issue, because it had filed two separate objections alleging that Intervenor Local 100 had attempted to buy votes and had also provided “substantial benefits including food and clothing, such as t-shirts.” The Board panel majority found that because the Employer included separate allegations with respect to Local 100, the majority was persuaded that the Employer did not believe that vote buying was encompassed within the objection regarding Local 621’s conduct alleging solely the provision of “substantial benefits.” Member Miscimarra would have reversed the Regional Director’s rejection of the proffered evidence based on the objection alleging Local 621 provided “substantial benefits including food and clothing, such as t-shirts” and would have remanded the case for a hearing on this issue. In the absence of exceptions to the other objections, the Board adopted the Regional Director’s recommendation to overrule various other objections, but noted that two other objections remain pending before the Board. Petitioner—Local 621, United Construction Trades & Industrial Employees. Intervenor—Transport Workers Union, Local 100, AFL-CIO. Intervenor—Local 332, United Workers of America. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Bay State Drywall Company, Inc. (01-RC-129480) Freetown, MA, February 23, 2015. The Board adopted the hearing officer’s recommendation to sustain the challenges to the ballots of: (1) the Employer’s tapers because they did not share an overwhelming community of interest with the petitioned-for carpenters; and (2) an individual voter because he was the son of a 50-percent owner of the company. Member Johnson found that the petitioned-for unit was appropriate under the Board’s traditional community-of-interest analysis. Accordingly, the Board certified the Petitioner, New England Regional Council of Carpenters, as the exclusive collective-bargaining representative of the employees in the appropriate unit. Members Hirozawa, Johnson, and McFerran participated.
Cordova Dredge, a Division of Riverstone Group, Inc. (25-RD-138605) Cordova, IL, February 25, 2015. Order denying the Union’s Request for Review of the Regional Director’s Decision and Direction of Election, on the ground that it raises no substantial issues warranting review. Petitioner—an individual. Union—International Union of Operating Engineers, Local No. 150. Members Hirozawa, Johnson, and McFerran participated.
Clear Channel Outdoor, Inc. (32-RC-139395) Oakland, CA, February 25, 2015. The Board adopted the Regional Director’s recommendation to overrule the Employer’s objection to an election held on November 21, 2014, alleging that the Petitioner seriously restrained and coerced the employees in the petitioned-for unit and effectively destroyed the laboratory conditions for a fair election by threatening employees with the loss of vested pension benefits, accrued health benefits, and their jobs if they did not vote for the union. The Board noted that the Region conducted a full investigation based on the information in an affidavit provided by the Employer, including relying on the Region’s investigation of allegations in the same affidavit filed in the related Case 32-CB-140956 (withdrawn by the Employer on January 16, 2015). In that case, the Region found no employee witnesses who would corroborate the assertions in the hearsay affidavit. As noted by the Regional Director, aside from the employees named, the affidavit did not identify anyone else, such as the Petitioner’s agents allegedly involved in misconduct, and the Employer did not provide any other witness statements. Accordingly, the Board certified the Petitioner, Construction and General Laborers Local 304, Laborers’ International Union of North America, AFL-CIO, and The Northern California District Council Of Laborers, as the exclusive collective-bargaining representative of the employees in the appropriate unit. Members Hirozawa, Johnson, and McFerran participated.
Tito Contractors, Inc. (05-RC-117169) Cockeysville, MD, February 25, 2015. No exceptions having been filed to the hearing officer’s overruling of the Employer’s objection in a mail-ballot election held between February 28, 2014 and March 14, 2014, the Board certified the Petitioner, International Union of Painters and Allied Trades, District Council 51, AFL-CIO as the exclusive collective-bargaining representative of the employees in the appropriate unit.
Point Park University (06-RC-012276) Pittsburgh, PA, February 25, 2015. The issue in this case is whether the Employer’s fulltime faculty members are managerial employees, whose rights to engage in collective bargaining are not protected by the Act. The Board remanded the proceeding to the Regional Director for further appropriate action consistent with its recent decision in Pacific Lutheran University, 361 NLRB No. 157 (2014), which specifically addressed the standard to be applied in making such determinations. Petitioner—Newspaper Guild of Pittsburgh/Communications Workers of America, Local 38061, AFL-CIO, CLC. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.
Shaw’s/Star Market, a Division of Albertson’s d/b/a Osco Pharmacy (01-RC-144611) Waterville, ME, February 25, 2015. Order denying the Employer’s Special Appeal of the Regional Director’s Order Reopening Representation Hearing. In denying the Special Appeal on the merits, the Board concluded that the Regional Director did not abuse his discretion. The Board observed that a regional director has the authority to supplement an incomplete record by reopening a representation hearing. Board’s Rules and Regulations, Sec. 102.67(a). The Board noted regional directors have exercised this authority in the past, citing Musical Theater Association, 221 NLRB 872, 872 fn.1 (1975). Petitioner—International Brotherhood of Teamsters, Local Union No. 340. Members Hirozawa, Johnson, and McFerran participated.
Constellation Brands, U.S. Operations, Inc., d/b/a Woodbridge Winery (32-RC-135779) Acampo, CA, February 26, 2015. Order denying the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election. The Regional Director, applying Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), found the petitioned-for unit of operators and foremen working in the Employer’s outside cellar department at its Acampo facility to be an appropriate unit for bargaining. The Board found no merit in the Employer’s contention that the Regional Director improperly “ignored the Board’s long established precedent that a plant-wide unit ‘is presumptively appropriate.’” Petitioner--Cannery, Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 601, International Brotherhood of Teamsters. Chairman Pearce and Members Hirozawa and McFerran participated.
Islamic Saudi Academy (05-RC-080474) Alexandria, VA, February 26, 2015. Order remanding proceeding to the Regional Director for further appropriate action consistent with Pacific Lutheran University, 361 NLRB No. 157 (2014). The Board previously had granted the Petitioner’s Request for Review of the Regional Director’s decision to decline to assert jurisdiction over teachers, and the Academy’s Request for Review of the Regional Director’s decision to assert jurisdiction over non-teacher employees. The Board majority had also denied the Academy’s Request for Review of the Regional Director’s rejection of the argument that the Board lacked jurisdiction over the Academy because it is an instrumentality of a foreign government under the Foreign Sovereign Immunities Act (FSIA). In its new Order, the Board noted that at the time of the Order granting review, the composition of the Board included persons whose appointments were challenged as constitutionally infirm, and that the United States Supreme Court subsequently issued its decision in NLRB v. Noel Canning, 134 NLRB 2550 (2014), holding that the challenged appointments to the Board were not valid. Accordingly, the Board vacated the Order granting review and remanded the proceeding to the Regional Director. The Board severed the issue of jurisdiction under the FSIA, and retained it for further consideration. Members Miscimarra and Johnson stated that they adhered to their dissenting views in Pacific Lutheran University, but nevertheless agreed that a remand was appropriate. Petitioner—Islamic Saudi Academy Employee Professional Association (ISAEPA). Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.
MVM, Inc. (05-RD-143548) Bethesda, Poolesville, Gaithersburg, Rockville, and Baltimore, Maryland, February 27, 2015. Order denying the United Security & Police Officers of America (USPOA)’s Request for Review of the Regional Director’s Decision and Direction of Election, and denying its appeal of the Regional Director’s determination regarding the sufficiency of the Intervenors’ showings of interest on the merits. In denying review, the Board did not rely on the Regional Director’s finding that USPOA waived the right to contest the intervention of the National League of Justice and Security Professionals. Member Johnson noted that USPOA is not precluded from filing objections to the election asserting that the inclusion of Intervenors in this decertification proceeding created confusion among unit employees. To the extent that USPOA asserts that the ballot is confusing to employees based on their difficulty in understanding English, however, Member Johnson noted that USPOA could have addressed this concern in advance of the election by requesting translated ballots. Petitioner—an individual. Members Hirozawa, Johnson, and McFerran participated.
West Coast Lighting & Energy, Inc. (28-RC-123203) Las Vegas, NV, February 27, 2015. The Board denied the Petitioner Union’s Request for Review of the Regional Director’s Decision and Order dismissing a petition seeking to represent a unit comprised of Service Technicians and Lighting Maintenance Technicians. In its order, the Board clarified that it relies solely on the Regional Director’s finding that Service Technicians exercise supervisory authority to effectively recommend hiring of Lighting Maintenance Technicians, and not the Regional Director’s findings as to discipline or direction. The Board also denied the Petitioner’s request to strike the testimony of a rebuttal witness because that testimony would not affect the outcome of the case. Petitioner—International Brotherhood of Electrical Workers, Local Union 357, AFL-CIO. Chairman Pearce and Members Johnson and McFerran participated.
C Cases
Trinity Marine Products, Inc. (15-CA-136100) Caruthersville, MO, February 23, 2015. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena seeks information relevant to the matters under investigation and describes with sufficient particularity the evidence sought, but noted that (1) the Employer is not required to provide duplicates of any subpoenaed documents that have already been produced,; (2) to the extent that the subpoena may encompass documents that the Employer believes in good faith are protected by the attorney-client or attorney work product privileges, the Board’s order is without prejudice to the submission of a privilege log; and (3) that if the Employer does not maintain employee “manuals” or “handbooks,” it is not obligated to provide them; however, it must provide a complete collection of its policies applicable to its employees. The Board further found that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO. Members Miscimarra, Hirozawa, and Johnson participated.
CCR Fire Protection, LLC (15-CA-134356) Denham Springs, LA, February 23, 2015. The Board denied the Employer’s petition to revoke a subpoena ad testificandum. The Board found that the subpoena seeks information relevant to the matter under investigation, describes with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. In addition, the Board stated that the disposition of the petition is consistent with existing Board law as reflected in Postal Workers Local 64 (USPS), 340 NLRB 912 (2003) and Offshore Mariners United, 338 NLRB 745 (2002), which enforced subpoenas identifying the case name and number.
Members Miscimarra and Johnson agreed that the subpoena described with sufficient particularity the evidence sought, but relied solely on the uncontradicted assertion in the Region’s brief in opposition to the petition that the Board Agent had repeatedly explained to the Employer’s counsel which allegations will likely be the focus of the testimony sought and that the Employer had been provided with an outline of the topics to be discussed. In the view of Members Miscimarra and Johnson, the subpoena itself should describe with reasonable particularity the general topics or issues that would be the subject of subpoenaed testimony or other evidence. Members Miscimarra and Johnson stated that they believe that the requirement of “particularity” requires more than merely giving the case name and number of the proceeding in which the subpoena has been issued. They also noted that the Board has moved in the direction of providing substantially more detail in remedial notices, for example, to “facilitate a better understanding,” including hyperlinks and QR codes providing direct electronic access to the Board’s decisions, citing Durham School Services LP, 360 NLRB No. 85 (2014). Members Miscimarra and Johnson indicated that although subpoenas serve a different purpose, they believe that subpoenas should provide fair notice to recipients regarding the topics or issues deemed relevant to the testimony or other evidence being sought. Charge filed by Road Sprinkler Fitters Union, Local 669, United Association of Journeymen and Apprentices of the Plumbing Industry of the U.S. & Canada, AFL-CIO. Members Miscimarra, Hirozawa and Johnson participated.
United States Postal Service (07-CA-117584) Grand Rapids, MI, February 23, 2015. No exceptions having been filed to the January 12, 2015 decision of Administrative Law Judge Thomas M. Randazzo 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 Local 307, National Postal Mail Handlers Union (NPMHU), a division of the Laborers’ International Union of North America, AFL-CIO.
TGF Management Group Holdco, Inc. (22-CA-123003) Carteret, NJ, February 25, 2015. No exceptions having been filed to the January 15, 2015 decision of Administrative Law Judge Lauren Esposito finding that the Respondent 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 Judge’s recommended Order. Charge filed by International Brotherhood of Teamsters, Local 469.
United States Postal Service (07-CA-107223 et al.) Birmingham, Brighton, Clawson, Farmington Hills, Hazel Park, Royal Oak, Troy, Novi, South Lyon, and Walled Lake, Michigan, February 27, 2015. Board Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying the actions the Respondent must take to comply with the National Labor Relations Act. Member Johnson stated that he would not approve the part of the Order requiring the Respondent to cease and desist from failing to bargain with “any other labor organization” because that asserted violation was not alleged as part of this case. Charge filed by Branch 3126, National Association of Letter Carriers (NALC), AFL-CIO. Members Hirozawa, Johnson, and McFerran participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Scoma’s of Sausalito, LLC (20-CA-116766; JD(SF)-04-15) Sausalito, CA. Administrative Law Judge Mary Miller Cracraft issued her decision on February 23, 2015. Charge filed by UNITE HERE, Local 2850.
United States Postal Service (07-CA-101857 and 07-CA-114412; JD-10-15) Detroit, MI. Administrative Law Judge Thomas M. Randazzo issued his decision on February 24, 2015. Charges filed by Detroit District Area Local, American Postal Workers Union, (APWU), AFL-CIO.
Austin Professional Dental Corporation, P.C. (16-CA-111300; JD(SF)-05-15) Austin, TX. Administrative Law Judge Gerald M. Etchingham issued his decision on February 26, 2015. Charge filed by an individual.
Salem Hospital Corporation, a/k/a The Memorial Hospital of Salem County (04-CA-130032; JD-11-15) Salem, NJ. Administrative Law Judge Susan A. Flynn issued her decision on February 27, 2015. Charge filed by Health Professionals and Allied Employees, AFT/AFL-CIO.
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