Summary of NLRB Decisions for Week of February 29 - March 4, 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 Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decisions
H&M International Transportation, Inc. (22-CA-089596, 22-CA-095095, and 22-CB-106127; 363 NLRB No. 139) Jersey City, NJ, March 1, 2016.
The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging four employees because of their protected, concerted and union activity. The Board rejected the Respondent’s exceptions, which concerned the judge’s admission into evidence of a surreptitiously-made audio recording. The Board found that the judge’s factual findings were independently supported by credited testimony, and that the admission of the recording was consistent with Board precedent. Charge filed by an individual. Administrative Law Judge Mindy E. Landow issued her decision on June 10, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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Dish Network, LLC (27-CA-131084; 363 NLRB No. 141) Englewood, CO, March 3, 2016.
The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by maintaining an overly broad solicitation policy, and by disciplining and discharging an employee for engaging in protected concerted activity. While Member Miscimarra concurred in finding the discharge unlawful, he found that the judge misapplied the burden-shifting framework set forth in Wright Line, 251 NLRB 1083 (1980), because the judge relied on evidence of unlawful motivation in analyzing the Respondent’s defense burden. Instead, Member Miscimarra found that the Respondent failed to meet its defense burden based on record evidence unrelated to the Respondent’s unlawful motivation. Charge filed by an individual. Administrative Law Judge Robert A. Ringler issued his decision on March 26, 2015. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Capay, Inc. d/b/a Farm Fresh to You (20-CA-166233; 363 NLRB No. 142) West Sacramento, CA, March 4, 2016.
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 noted that, in denying the Respondent’s Request for Review of the Regional Director’s Decision Regarding Objections to Election and Certification of Representative, the Board found that the Respondent had not timely raised its allegations that the Union engaged in electioneering and surveillance, but that, in any event, the Respondent’s arguments concerning those allegations lacked merit. Member Miscimarra would have found that the Respondent sufficiently and timely raised its electioneering and surveillance arguments in its objections, but agreed that the Respondent failed to raise substantial and material issues regarding either argument. Capay, Inc. d/b/a Farm Fresh to You, Case 20–RC–153475, unpublished Order issued October 28, 2015, at 1 fn. 1. Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union. Charge filed by Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, Local 85. Members Miscimarra, Hirozawa, and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
T & G Corporation, Inc. d/b/a The Behavioral Center of Michigan (07-UC-160699) Warren, MI, March 2, 2016. The Board denied the Employer-Petitioner’s Request for Review of the Regional Director’s dismissal of a petition for unit clarification on the ground that it raised no substantial issues warranting review. Employer-Petitioner – T & G Corporation, Inc. d/b/a The Behavioral Center of Michigan. Union – SEIU Healthcare Michigan. Chairman Pearce and Members Hirozawa and McFerran participated.
Chicago Tribune Co., LLC d/b/a Northwest Indiana Post Tribune; Chicago Tribune Co., LLC d/b/a Lake County News Sun; and Chicago Tribune Co., LLC d/b/a Pioneer Press (13-UC-148550, 13-UC-148555, and 13-UC-148565) Chicago, IL, March 3, 2016. The Board denied review of the Regional Director’s decision and order dismissing three unit clarification petitions seeking to add several exempt employees to separate bargaining units at the three newspapers owned by the Employer, and denied the Petitioner’s request for oral argument. Citing Section 102.61(d) of the Board’s Rules and Regulations, the Regional Director found that the petitions lacked an accurate description of the present bargaining units and did not describe the proposed clarifications sought by the Petitioner. He found that, despite repeated requests, the Petitioner failed to identify both the particular job classifications of the employees at issue in the petitions, as well as the number of employees in these classifications. The Regional Director found that the Petitioner, in its submission of evidence, identified individual employees whom it sought to include in the unit and how their individual duties have changed, but not classifications. He found that the petitions seek to clarify the standardized scope of unit language from Petitioner’s 2012 and 2013 bargaining proposals in an apparent effort to seek through these clarification petitions what it failed to achieve through collective bargaining. Petitioner – Chicago Newspaper Guild Local 34071, The News Guild/Communication Workers of America, AFL-CIO. Chairman Pearce and Members Hirozawa and McFerran participated.
C Cases
VXI Global Solutions, LLC (08-CA-133514) Cleveland, OH, February 29, 2016. The Board granted the joint motion to waive a hearing before an Administrative Law Judge and transferred the case to the Board. Charge filed by an individual.
PCMC/Pacific Crane Maintenance Company, Inc. and/or Pacific Marine Maintenance Co., LLC, a single employer, and/or PCMC/Pacific Crane Maintenance Company, LP, their successor (32-CA-021925, et al.) Oakland, CA and Tacoma, WA, March 1, 2016. The Board denied the Respondent Employer’s motion to reopen the record and motion for reconsideration of the Board’s Decision and Order reported at 362 NLRB No. 120 (2015). The Board rejected the Respondent Employer’s argument that the passage of time since it unlawfully withdrew recognition from the Machinists Union, coupled with the turnover of employees and managers, rendered the Board’s affirmative bargaining order improper. The Board explained that an affirmative bargaining order is the appropriate remedy for an unlawful withdrawal of recognition despite a significant passage of time and/or significant employee or managerial turnover between the unlawful act and the Board’s issuance of the order. Additionally, the Board denied the Respondent Employer’s request for an opportunity to prove that, after the close of the hearing, the Respondent Employer made additional changes to terms and conditions of employment that further integrated the unit employees into another bargaining unit represented by the International Longshore and Warehouse Union. The Board explained that the Respondent Employer was prohibited from relying on the results of its unfair labor practices to establish an integration of operations requiring the merger of bargaining units. Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 190, Local Lodge 1546, and District Lodge 160. Administrative Law Judge Clifford H. Anderson issued his decision on February 12, 2009. Chairman Pearce and Members Hirozawa and McFerran participated.
Carnegie Linen Services, Inc. (02-CA-039560) New York, NY, March 2, 2016. No exceptions having been filed to the December 29, 2015 supplemental decision of Administrative Law Judge Mindy E. Landow in which the judge determined the amount of backpay due to the discriminatee, the Board adopted the judge’s findings and ordered the Respondent to pay the amount set forth in the recommended Order. Charge filed by Laundry, Distribution, and Food Service Joint Board a/w Workers United a/w SEIU f/k/a Laundry, Drycleaning and Allied Workers Joint Board, Workers United.
Hospital Metropolitano d/b/a Hospital Dr. Susoni (12-CA-158521) Arecibo, PR, March 2, 2016. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by Unidad Laboral De Enfermeras(os) y Empleados de la Salud. Members Miscimarra, Hirozawa, and McFerran participated.
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Appellate Court Decisions
Staffing Network Holdings, LLC, Board Case No. 13-CA-105031 (reported at 362 NLRB No. 12) (7th Cir. decided March 2, 2016)
In a published opinion, the court enforced the Board’s order issued against this staffing agency, a provider of long-term and temporary technical, professional, and light industrial services to a variety of employers in the Romeoville, Illinois area, for twice threatening employees, and discharging one, for engaging in a protected, concerted work stoppage in violation of Section 8(a)(1) of the Act.
After a co-worker was dismissed, an employee and a few of her co-workers engaged in a brief work stoppage to protest the dismissal. Their supervisor immediately threatened to send them all home, and then specifically turned to threatening the employee who had spoken up by repeatedly and angrily asking her if she was fine and stating that he could send her home if she had an issue. Moments later, the supervisor made good on the threat, telling her to go home and not to return to work. On those facts, the Administrative Law Judge found the threats and discharge unlawful, and the Board (Chairman Pearce and Members Hirozawa and Johnson) agreed.
On review, the court upheld the Board’s findings and rejected the Employer’s various defenses. In disposing of the Employer’s contention that it had not, in fact, discharged the employee, the court noted that, in addition to other evidence, here documentary evidence—a written response to the State of Illinois’ unemployment inquiries—contained a “smoking gun admission” that the separation was “involuntary.” Noting that the Employer’s counsel at oral argument attempted to explain this by stating that the person who filled out the form was not a lawyer, the court noted: “A manager need not be a lawyer to know whether an employee has been terminated or simply sent home for the day.” Finally, the court held that the Employer’s remaining arguments “are all founded on a version of the facts that was thoroughly rejected by the [judge]” on the basis of credibility determinations, and enforced.
The court’s opinion is here.
Dover Hospitality Services, Inc., Board Case No. 29-CA-063398 (reported at 361 NLRB No. 90), and Dover Caterers, Inc., Board Case No. 29-CA-030591 (reported at 361 NLRB No. 60) (2d Cir. decided March 4, 2016)
In an unpublished summary order, the court enforced the Board’s orders in these two cases that were consolidated for review.
In both cases, the Board found that the Employer, a provider of food service at the Selden and Brentwood campuses of Suffolk County Community College in New York, failed twice, and in a third instance, delayed in providing requested information to Local 1102 of the Retail, Wholesale & Department Store Union, United Food & Commercial Workers Union, in violation of Section 8(a)(5) and (1) of the Act. Specifically, the Board found that, in the course of bargaining for a successor collective-bargaining agreement, the Employer repeatedly claimed that it could not afford the current agreement’s wage rates and benefits, let alone the Union’s proposed increases. The Board found that, having made those assertions, the Employer was obligated under well-established Board and court precedent to provide, upon request, financial information so that the Union could evaluate the inability-to-pay claim.
On review, the court agreed holding that substantial evidence supported the Board’s unfair-labor-practice findings. In doing so, the court rejected the Employer’s contention that the cases were moot because it had later provided some information to the Union and Regional Office. The court explained that the Employer’s “partial and belated compliance” does not moot the Board’s applications for enforcement.
The court’s opinion is here.
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Administrative Law Judge Decisions
Outokumpu Stainless USA, LLC f/k/a Thyssenkrupp Stainless USA, LLC (15-CA-070319 and 15-CA-073053; JD(SF)-09-16) Calvert, Alabama. Administrative Law Judge Jeffrey D. Wedekind issued his decision February 29, 2016. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.
Coastal Marine Services, Inc. (21-CA-139031; JD-16-16) San Diego, CA. Administrative Law Judge Robert A. Giannasi issued his decision on March 1, 2016. Charge filed by International Association of Heat & Frost Insulators and Allied Workers, Local 5.
Ralphs Grocery Company (21-CA-147393; JD(SF)-10-16) Paramount, CA. Administrative Law Judge Lisa D. Thompson issued her decision on March 1, 2016. Charge filed by an individual.
Branch 4779, National Association of Letter Carriers (NALC), AFL-CIO (United States Postal Service) (07-CB-155726 and 07-CB-156115; JD(NY)-07-16) Detroit, MI. Administrative Law Judge John T. Giannopoulos issued his decision on March 2, 2016. Charges filed by individuals.
Beena Beauty Holding, Inc. d/b/a Planet Beauty (31-CA-144492; JD(SF)-11-16) Studio City, CA. Administrative Law Judge Mary Miller Cracraft issued her decision on March 3, 2016. Charge filed by an individual.
Gulf Coast Rebar, Inc. (12-CA-149627, et al.; JD-18-16) Jacksonville, FL. Administrative Law Judge Keltner W. Locke issued his decision on March 4, 2016. Charges filed by Iron Workers Regional District Council, International Union of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO.
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