Summary of NLRB Decisions for Week of February 8 - 12, 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
G4S Government Solutions, Inc., d/b/a WSI Savannah River Site, a/k/a WSI-SRS (10-RC-126849; 363 NLRB No. 113) Barnwell, SC, February 10, 2016.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Regional Director’s finding that the Employer failed to establish that the petitioned-for lieutenants are statutory supervisors. The majority found that the record did not establish that the lieutenants responsibly direct employees within the meaning of Oakwood Healthcare, 348 NLRB 686 (2006), because the record did not show that the lieutenants (1) are held personally accountable for the performance of their subordinates, and (2) exercise independent judgment when directing subordinates. The majority similarly found that the record neither established that the lieutenants possess the authority to assign employees, nor established that the lieutenants possess the authority either to discipline employees or effectively to recommend discipline. In dissent, Member Miscimarra would have found that the lieutenants possess the authority to responsibly direct employees. Petitioner – International Guards Union of America. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Lakepointe Senior Care and Rehab Center, LLC (07-CA-162939; 363 NLRB No. 114) Clinton Township, MI, February 11, 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 either were not, or could not have been, litigated in the underlying representation proceeding 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 recognize and bargain with the Union. The Board also denied the Respondent’s request under the Equal Access to Justice Act for actual attorney fees and costs. Charge filed by SEIU Healthcare Michigan. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Four Seasons Environmental, Inc. (10-CA-164737; 363 NLRB No. 115) Atlanta, GA, February 12, 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 either were not, or could not have been, litigated in the underlying representation proceeding 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 recognize and bargain with the Union. Charge filed by International Union of Operating Engineers, Local 926. Chairman Pearce and Members Hirozawa and McFerran participated.
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The Cement League (03-CA-126938; 363 NLRB No. 117) New York, NY, February 12, 2016.
The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining provisions in its collective-bargaining agreement that allowed association employers to bypass the Union’s out-of-work list provided the hires were Union members. The Board noted that the Respondent did not except to the judge’s finding that the union hiring preference violated the Act, but instead urged the Board not to invalidate the unlawful provisions because doing so would conflict with Federal district court orders issued to effectuate a RICO consent decree. After examining the district court orders, the Board found no conflict between the orders and the Board’s remedying of the unfair labor practice because the court assessed whether the agreement was consistent with the consent decree, but did not analyze the agreement under the NLRA. The Board also found no conflict between remedying the unfair labor practice and the court’s anticorruption objectives underlying its orders. Charges filed by Northeast Regional Council of Carpenters. Administrative Law Judge Raymond P. Green issued his decision on May 21, 2015. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Remington Lodging & Hospitality, LLC and Remington Lodging & Hospitality, LLC and Hospitality Staffing Solutions, LLC, joint employers (29-CA-093850 and 29-CA-095876; 363 NLRB No. 112) Hauppauge, NY, February 12, 2016.
The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by interrogating and threatening its housekeeping employees, and by stating that it would enforce work rules more strictly if employees unionized. A Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the judge’s findings that the Respondent also violated the Act by subcontracting its housekeeping work because of employees’ union activity (effectively discharging its housekeeping employees), and by unlawfully discharging an employee because it believed that she would engage in protected concerted activity. The Board unanimously found that the Respondent violated Section 8(a)(3) by refusing to hire the incumbent housekeeping employees upon the termination of the subcontract.
Dissenting in part, Member Miscimarra found the subcontracting of housekeeping work and the discharge of the employee lawful. He found it unnecessary to pass on three additional interrogations or threats found by the majority. Charges filed by Local 947, United Service Workers Union, International Union of Journeymen and Allied Traders. Administrative Law Judge Raymond P. Green issued his decision on May 15, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Wolf Creek Nuclear Operating Corporation (14-RC-160836) Burlington, KS, February 9, 2016. The Board granted the Petitioner’s Request for Review of the Regional Director’s Decision and Order as to whether the Employer’s security training instructors are managerial employees. The Board denied the Request for Review in all other respects. The Board found the Petitioner’s argument, that the Employer is precluded from arguing that the security instructors are managerial employees, was not properly before the Board because the Petitioner did not first present this issue to the Regional Director. Petitioner – United Government Security Officers of America, International Union and Its Local 252. Chairman Pearce and Members Miscimarra and Hirozawa participated.
S&F Supplies, Inc. (29-RC-162198) Brooklyn, Woodside, and Farmingdale, NY, February 10, 2016. The Board denied the Intervenor’s Request for Review of the Regional Director’s Decision and Certification of Representative on the ground that it raised no substantial issues warranting review. Petitioner – Waste Material Recycling and General Industrial Laborers Local Union 108, LUINA, AFL-CIO. Intervenor – International Brotherhood of Trade Unions, Local 713. Members Miscimarra, Hirozawa, and McFerran participated.
Linwood Care Center (04-RD-157892) Linwood, NJ, February 10, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s determination to hold the petition in abeyance pending resolution of the outstanding unfair labor practice charges on the ground that it raised no substantial issues warranting review. Member Miscimarra noted that he favors a reconsideration of the Board’s blocking charge doctrine for reasons expressed in the dissenting views that were contained in the Board’s representation election rule; however, he acknowledged that the Board has declined to change materially its blocking charge doctrine, and he agreed that the Regional Director did not abuse his discretion by applying the doctrine in the instant case. Union – 1199 SEIU United Healthcare Workers East. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Global Experience Specialists, Inc. (15-RD-166235) New Orleans, LA, February 10, 2016. The Board denied the Union’s request to stay this decertification election, or, alternatively, to impound or segregate the election ballots. Petitioner – an individual. Union – International Brotherhood of Teamsters Local No. 270. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
Hotel Management Advisors Troy, LLC d/b/a Metropolitan Hotel Detroit – Troy (07-CA-076369) Troy, MI, February 8, 2016. Because the parties waived appeal, the Board adopted the April 3, 2013 recommended Order of Administrative Law Judge Ira Sandron and ordered the Respondent to take the action set forth in the Board’s Amended Order. Charge filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.
Mercy Hospital (18-CA-155443 and 18-CA-163045) Coon Rapids, MN, February 9, 2016. The Board denied the Respondent’s request for special permission to appeal the Administrative Law Judge’s order denying the Respondent’s motion to sever complaint allegations for deferral to arbitration. The Board found that the Respondent failed to establish that the judge abused his discretion. Member Miscimarra noted that the Board’s ruling is without prejudice to the parties’ right to continue litigating the appropriateness of deferral to arbitration regarding claims addressed in the hearing. Charges filed by SEIU Healthcare Minnesota and an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Walmart Stores, Inc. (21-CA-150416) Pico Rivera, CA, February 10, 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, and that the Employer failed to establish any other legal basis for revoking the subpoena. The Board further found that the General Counsel’s request for certain documents did not violate the protective order issued in an earlier case, and thus denied the Employer’s request that the Board’s attorneys be prohibited from using the requested documents in this or any related proceeding. If the Employer so requests, the Board directed the General Counsel to enter another protective order with the Employer covering the documents in this proceeding. Charge filed by Organization United for Respect at Walmart (OUR WALMART). Chairman Pearce and Members Miscimarra and Hirozawa participated.
Spectrum Juvenile Justice Services, Inc., an affiliate of Spectrum Human Services, Inc. (07-CA-155494, 07-CA-160719 and 07-CA-160938) Highland Park, MI, February 10, 2016. The Board denied the Employer’s petition to revoke investigative subpoenas duces tecum. The Board found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoenas. The Board explained that, although the subpoenas cannot compel the Employer to produce documents that it does not possess, the subpoenas do compel the Employer to conduct a thorough search for the requested information. The Board stated that, if the requested information is found, the Employer must produce it; if it cannot be found, the Employer must affirmatively represent to the Region that no responsive documents exist. Charge 07-CA-155494 filed by an individual. Charges 07-CA-160719 and 07-CA-160938 filed by Council 25, American Federation of State, County & Municipal Employees (AFSCME), AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
United States Postal Service (05-CA-140963) Washington, DC, February 10, 2016. The Board granted the Respondent’s request for special permission to appeal the Administrative Law Judge’s ruling rejecting the Respondent’s assertion of a deliberative process privilege, but denied the appeal. The Board found that the General Counsel and the Respondent agreed that the Respondent need not produce documents wholly unrelated to the issues in this case and that the Respondent was asserting the deliberative process privilege only for such irrelevant documents. Therefore, the Board found no substantive issue was before it at this time and that the judge’s ruling did not contemplate the production of documents no longer under subpoena. To the extent that the parties may disagree as to which documents are “wholly unrelated to the issues raised in the case,” the Board stated that the judge may conduct an in camera review of any disputed documents. Charges filed by American Postal Workers Union, AFL-CIO. Members Miscimarra, Hirozawa, and McFerran participated.
Primeflight Aviation Services, Inc. (12-CA-155609) San Juan, PR, February 10, 2016. The Board denied Southwest Airlines’ petitions to revoke investigative subpoenas ad testificandum issued to its employees in this case to which it is not a party. The Board found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that it has full authority to issue an investigative subpoena to a non-party. Member Miscimarra stated that the instant subpoenas, which identify only a case name and number, are deficient because they fail to state with sufficient particularity the evidence being sought. However, in the absence of any objection to the subpoenas on this basis, he concurred in the denial of the petitions to revoke. Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Clinical Colleagues, Inc. (10-CA-156810) Bluefield, WV, February 11, 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, and that the Employer failed to establish any other legal basis for revoking the subpoena. The Board explained that, to the extent that the Employer has provided some of the requested material, it is not required to produce that information again. The Board further explained that, to the extent that the subpoena encompasses documents that the Employer believes in good faith to be subject to either the attorney-client privilege or the attorney work product doctrine, the Board’s Order is without prejudice to the Employer’s prompt submission of a privilege log. Finally, the Board directed the Employer to produce all responsive documents in its possession not subject to any good-faith claim of privilege or protection. Charge filed by National Nurses Organizing Committee (NNOC). Chairman Pearce and Members Miscimarra and McFerran participated.
The New York Hospital Medical Center of Queens (29-CA-136515) Flushing, NY, February 11, 2016. No exceptions having been filed to the December 31, 2015 decision of Administrative Law Judge Steven Fish 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 an individual.
Building Opportunities for Self-Sufficiency (32-CA-158844) Berkeley, CA, February 12, 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. Charge filed by California Professional Employees, Local Union #2345, District Council #36, IUPAT, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Air Traffic Management Consulting Inc. (28-CA-147299) Nellis Air Force Base, NV, February 12, 2016. The Board approved the parties’ formal settlement agreement and issued an order requiring the Employer to bargain with the Union as the collective-bargaining representative of a unit of its aircraft servicers. Pursuant to the settlement agreement, the order also requires the Employer to provide the Union with information previously requested, and to extend the Union’s status as the exclusive bargaining representative for an additional 12 months upon the resumption of bargaining. Charge filed by International Association of Machinists & Aerospace Workers, AFL-CIO, Local Lodge 845. Chairman Pearce and Members Miscimarra and McFerran participated.
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Appellate Court Decisions
Parsons Electric, LLC, Board Case No. 18-CA-109253 (reported at 361 NLRB No. 20) (8th Cir. decided February 9, 2016)
In a published opinion, the court enforced the Board’s order issued against this electrical subcontractor based in Saint Paul, Minnesota, whose journeymen electricians, foremen, and general foremen are represented by the International Brotherhood of Electrical Workers, Local No. 110.
The Board (Chairman Pearce and Members Hirozawa and Johnson) found that the Employer violated Section 8(a)(5) and (1) by unilaterally changing its written employee break policy without notifying the Union or affording it an opportunity to bargain, and by unreasonably delaying in providing the Union with information it requested regarding employee breaks. The Board rejected the Employer’s contentions that the revision to the break policy did not constitute a material, substantial, or significant change, and that it merely clarified an existing practice regarding afternoon breaks. The Board also was not persuaded by the Employer’s claim that, because it had authorized the Saint Paul Chapter of the National Electrical Contractors Association to serve as its representative for all matters pertaining to the collective-bargaining agreement, it was prohibited from bargaining directly with the Union over the policy change.
On review, the court held that substantial evidence supports the Board’s unilateral change finding and that the Board had reasonably rejected the Employer’s asserted defenses. Given the information request finding was not contested, the court summarily enforced that portion of the Board’s order.
The court’s opinion is here.
MCPc, Inc., Board Case No. 06-CA-063690 (reported at 360 NLRB No. 39) (3d Cir. decided February 12, 2016)
In a published opinion, the court enforced in part the Board’s cross-application for enforcement of its order issued against this Ohio technology company for conduct at its field office in Pittsburgh, Pennsylvania, but vacated and remanded an unlawful discharge finding so that the Board, in the first instance, could engage in a dual-motive analysis under Wright Line.
The Board found that the Employer violated Section 8(a)(1) by maintaining an overbroad confidentiality rule and by discharging an employee for engaging in protected, concerted activity when, in February 2011, he complained to management in a team-building lunch about high executive pay and its negative effect on employee workloads. After the employee raised those concerns, his coworkers joined the discussion and indicated their agreement. In finding his discharge unlawful, the Board rejected the Employer’s claim that it instead discharged him for improperly accessing an executive’s confidential salary information from the company personnel system and disclosing it during the group meeting, because the alleged misconduct did not, in fact, occur. The Board did not comment on the additional claim that the Employer discharged him for lying about the source of his executive salary information.
After an extensive review of the meaning of protected, concerted activity, the court affirmed the Board’s determination that the employee had engaged in such activity. The court noted that its precedent included cases that involved “‘only a speaker and a listener’ if the individual engages in it ‘with the object of initiating or inducing or preparing for group action or it has some relation to group action in the interest of the employees.’” Similarly protected under its precedent is an individual’s complaint to management “where the action was taken with the apparent imprimatur of coworkers.” Despite that the employee’s conduct in this case did not fit exactly under either formulation, the court explained that “the touchstone for an individual’s concerted activity . . . remains whether the employee intends to induce group activity or whether the employee’s action bears some relation to group action in the interest of the employees.” The court thus concluded that the employee engaged in protected, concerted activity “when he communicated his dissatisfaction about shared working conditions . . . during the ‘team building’ lunch that provided a group forum within which [he] could relay to management complaints shared by other employees about workplace conditions they wished to see improved.” Rejecting the Employer’s arguments, the court explained that they “espouse an unduly cramped interpretation of concerted activity under [Section] 7—one that assesses concerted activity in terms of isolated points of conduct rather than the totality of the circumstances.”
The court, however, remanded the discharge issue because it concluded that the Board did not apply the correct standard for assessing the Employer’s claimed reasons for the discharge. After reviewing its in-circuit precedent, the court concluded that the Board was required to engage in a Wright Line dual-motive analysis to assess the Employer’s claims that it discharged the employee not for his protected, concerted activity, but for improperly obtaining executive salary information and then being dishonest about how he obtained it. The court stated that, “[a]lthough it may be that . . . the Board meant to invoke Wright Line as the appropriate test, . . . the Board neither noted the applicability of Wright Line nor applied it in this case.”
The court’s decision is here.
Chesapeake Energy Corporation, Board Case No. 14-CA-100530 (reported at 362 NLRB No. 80) (5th Cir. decided February 12, 2016)
In an unpublished opinion, the court granted the petition for review in part, and enforced in part the Board’s order issued against this energy company headquartered in Oklahoma City. As it has done previously in D.R. Horton v. NLRB and Murphy Oil USA, Inc. v. NLRB, the court rejected the Board’s finding that the Employer violated Section 8(a)(1) by imposing, as a condition of employment, arbitration agreements barring its employees from concertedly pursuing work-related claims in any forum. The Court, however, agreed with the Board’s determination that the agreement was unlawful because employees would construe it as barring them from filing unfair-labor-practice charges with the Board.
The court’s opinion is here.
Seedorf Masonry, Inc., Board Case No. 25-CA-088910 (reported at 360 NLRB No. 107) (8th Cir. decided February 10, 2016)
In a published opinion, the court denied enforcement and vacated the Board’s decision that concluded that this masonry contractor headquartered in Strawberry Point, Iowa, and doing work throughout the Midwest, violated Section 8(a)(5) and (1) by repudiating a multiemployer Section 8(f) collective-bargaining agreement.
Specifically, the Board found that the Employer was bound by the terms of a 2010-2014 collective-bargaining agreement between the Quad Cities Builders Association, Inc., and the International Union of Operating Engineers Local 150, AFL-CIO, to which it was a signatory by way of a 1988 individual agreement under which it had agreed to be bound to all subsequent Quad City Agreements, unless it revoked 90 days before expiration. The Board also found that the Employer unlawfully repudiated the Quad Cities Agreement mid-term in April 2012 by a letter in which it claimed there was no collective-bargaining agreement in existence between it and the Union. In doing so, the Board rejected the Employer’s affirmative defenses, finding that it failed to prove the existence of a stable, one-person unit, or that this case was instead an inter-union dispute, or that the underlying charge was not timely filed under Section 10(b).
On review, the court agreed with the Board that the Employer was bound by the 2010 Quad Cities Agreement, but held the Board’s reasoning for its repudiation finding was flawed because the April 2012 letter contained a statement of noncompliance, not repudiation. On the Section 10(b) bar issue, the court disagreed with the Board that the letter was the first notice of repudiation, instead pointing to a long history of “open and notorious” conduct by the Employer, known by the Union, in which it had failed to comply with the terms of the 2010 Quad Cities Agreement. Lastly, the court accepted the Employer’s defense under the exception that an Employer is privileged unilaterally to repudiate a Section 8(f) agreement if it presents prima facie evidence of a stable, one-person unit and the General Counsel fails in his ultimate burden of persuasion to show that the unit consisted of more than one employee. Thus, the court denied enforcement and vacated.
The court’s decision is here.
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Administrative Law Judge Decisions
Eym King of Missouri, LLC, d/b/a Burger King (14-CA-148915, 14-CA-150321 and 14-CA-150794; JD-10-16) Kansas City, MO. Administrative Law Judge Christine E. Dibble issued her decision on February 9, 2016. Charges filed by Workers Organizing Committee – Kansas City.
National Dance Institute – New Mexico, Inc. (28-CA-157050; JD-(SF)-06-16) Santa Fe, NM. Administrative Law Judge Eleanor Laws issued her decision on February 10, 2016. Charge filed by an individual.
Shamrock Foods Company (28-CA-150157; JD(SF)-05-16) Phoenix, AZ. Administrative Law Judge Jeffrey D. Wedekind issued his decision on February 11, 2016. Charge filed by Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC.
Alaris Health at Harbor View (22-CA-125023, 22-CA-125882 and 22-CA-140591; JD-12-16) Jersey City, NJ. Administrative Law Judge Michael A. Rosas issued his decision on February 11, 2016. Charges filed by 1199, SEIU United Healthcare Workers East.
Eym King of Missouri, LLC, d/b/a Burger King (14-CA-148915, 14-CA-150321, and 14-CA-150794; JD-10-16) Kansas City, MO. Errata to the February 9 decision of Administrative Law Judge Christine E. Dibble. Errata Amended Decision.
Armor Construction, LLC (03-CA-148130; JD-13-16) Falconer, NY. Administrative Law Judge Thomas M. Randazzo issued his decision on February 12, 2016. Charge filed by Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO.
Tube City IMS, LLC (07-CA-154813; JD-11-16) Monroe, MI. Administrative Law Judge Melissa M. Olivero issued her decision on February 12, 2016. Charge filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.
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