Summary of NLRB Decisions for Week of January 23 - 27, 2017
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
CPL (Linwood) LLC d/b/a Linwood Care Center and its Successor, 201 New Road Operations, LLC d/b/a Linwood Care Center (04-RM-145463; 365 NLRB No. 8) Linwood, NJ, January 23, 2017. (Correction issued January 27, 2017)
The Board granted the Employer’s motion for reconsideration of the Board’s Order denying its request for review of the Regional Director’s dismissal of the petition, requesting that the Board vacate the dismissal and remand for a causation hearing under Saint Gobain Abrasives, Inc., 342 NLRB 434 (2004). The Board also granted the Employer’s request for reconsideration of the Board’s denial of its request to supplement nunc pro tunc. Having reconsidered, the Board found that dismissal of the petition was warranted.
The Board explained that a causation hearing was not required because the charges challenged the circumstances surrounding the petition and directly affected the petition. See NLRB Casehandling Manual Part Two (CHM) Section 11730.3(a). Further, on November 30, 2016, the Board issued a decision adopting, in the absence of exceptions, the judge’s findings in the related consolidated unfair labor practice case that the Respondent committed numerous violations of Section 8(a)(1) (see 364 NLRB No. 154, slip op. at 1, fn. 1 (2016)). The Board explained that, based on these unfair labor practices, the Employer could not establish a good-faith reasonable uncertainty regarding the Union’s majority status, the objective considerations needed to support a RM petition. See CHM Section 11042.
The Board found it unnecessary to address the allegations of the Regional Director’s bias raised in the Employer’s supplement because a hearing had been held on the unfair labor practice allegations and an administrative law judge had found merit to those allegations. Further, as stated above, the Board adopted the judge’s findings in the absence of exceptions, and the Board found that those unfair labor practices warranted dismissal of the petition.
Union – 1199 SEIU United Healthcare Workers East. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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T-Mobile USA, Inc. (28-CA-148865; 365 NLRB No. 15) Albuquerque, NM, January 23, 2017. (Correction issued January 27, 2017)
The Board affirmed the Administrative Law Judge’s dismissal of allegations that the Respondent violated Section 8(a)(3) and (1) by rearranging employee seating assignments or by discharging one employee. The Board found that, even assuming the General Counsel had met his initial Wright Line burden to show that the employees’ union activity was a motivating factor in the actions, the Respondent met its rebuttal burden to prove that both actions would have been taken absent the employees’ protected activity. The Board (Members Pearce and McFerran; Acting Chairman Miscimarra dissenting) modified the judge’s Order to require rescission of an unlawful rule prohibiting employees from discussing the Union while working but not prohibiting them from talking about other non-work related topics.
Charge filed by Communication Workers of America, Local 7011, AFL-CIO. Administrative Law Judge Amita Baman Tracy issued her decision on December 10, 2015. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Red Devil Auto & Fleet Repair, LLC (28-CA-146421 and 28-CA-152886; 365 NLRB No. 19) Surprise, AZ, January 24, 2017. (Correction issued January 27, 2017)
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the General Counsel’s compliance specification. Accordingly, the Board ordered the Respondent to make the discriminatee whole by paying the backpay due as stated in the compliance specification.
Charges filed by an individual. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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EYM King of Missouri, LLC d/b/a Burger King (14-CA-150321; 365 NLRB No. 16) Kansas City, MO, January 24, 2017. (Correction issued January 27, 2017)
The Board found that the Respondent violated Section 8(a)(1) by disciplining six employees for participating in a one-day strike affiliated with the nationwide “Fight for $15” campaign to increase wages and improve working conditions for fast food workers. The Board agreed with the judge that the one-day strike did not constitute unprotected intermittent strike activity, emphasizing that employees had engaged in only one strike against the Respondent at the time it issued the discipline.
Charge filed by Workers Organizing Committee—Kansas City. Administrative Law Judge Christine E. Dibble issued her decision on February 9, 2016. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Elliott Manufacturing Company (32-CA-137848; 365 NLRB No. 17) Fresno, CA, January 25, 2017. (Correction issued January 27, 2017)
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the amended consolidated complaint and compliance specification. The Board found that the Respondent violated Section 8(a)(5) and (1) by repudiating and/or failing to continue in effect all the terms and conditions of the 2011-2014 collective-bargaining agreement’s Health and Welfare, Pension Contributions, and Classification and Wage Rates provisions, and ordered appropriate relief.
Charge filed by Machinists Local Lodge 653, District Lodge 190. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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International Union of Operating Engineers Local 18 (Nerone & Sons, Inc.) (08-CD-135243, 08-CD-143412 and 08-CD-147696; 365 NLRB No. 18) Warrensville Heights, OH, January 25, 2017. (Correction issued January 27, 2017)
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(4)(ii)(D) by continuing to pursue existing pay-in-lieu grievances and by filing new grievances seeking assignment of forklift and skid steer work previously awarded by the Board in 10(k) proceedings to Laborers’ International Union of North America, Local 310. The Board declined to address the Respondent’s work preservation and collusion defenses, explaining that the Board previously addressed those arguments in the underlying 10(k) proceedings as well as in a related case, Operating Engineers Local 18 (Donley’s Inc.) (Donley’s IV), 363 NLRB No. 184, slip op. at 2-4 & fn. 4 (2016). The Board also rejected the Respondent’s argument that the judge failed to use the “preponderance of the evidence” standard, explaining that all the elements of the violation were part of the stipulated facts.
Charges filed by Nerone & Sons, Inc., R.G. Smith Co., Inc., and KMU Trucking & Excavating, Inc. Administrative Law Judge David I. Goldman issued his decision on August 1, 2016. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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SK USA Cleaners, Inc. a/k/a SK USA Shirts, Inc. (22-CA-026959 and 22-CA-087198; 365 NLRB No. 20) Garfield, NJ, January 25, 2017. (Correction issued January 27, 2017)
The Board granted the General Counsel’s motion for default judgment based on the Respondents’ failure to file an amended answer to the General Counsel’s consolidated amended compliance specification. The Board ordered the Respondents to pay the backpay owed to discriminatees pursuant to the stipulated compliance agreement for the Board’s decision reported at 346 NLRB No. 63 (2006), and to pay the dues owed to the Union as found in the Board’s decision at 359 NLRB No. 74 (2013).
Charges filed by Local 947, International Union of Journeymen and Allied Trades. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
AFP Specialties, Inc. (07-RD-187706) Williamsburg, MI, January 27, 2017. The Board denied the Union’s request for expedited review of the Regional Director’s Decision and Direction of Election, and its request to stay the election. Petitioner – an individual. Union – Road Sprinkler Fitters Local Union No. 669 U.A., AFL-CIO. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
Wayron, LLC (19-CA-032983) Longview, WA, January 23, 2017. (Correction issued January 27, 2017) The Board denied the Respondent’s motion for reconsideration of the Board’s decision in 364 NLRB No. 60 (August 2, 2016) (PH, M diss. in part) on the ground that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration under the Board’s Rules and Regulations. Specifically, the Board found that the evidence the Respondent wanted the Board to consider was not in existence at the time of the hearing, and thus was not “previously unavailable” under Section 102.48 (d)(1). Even assuming the evidence met the requirements of Section 102.48(d)(1), the Board found it was not promptly brought to the Board’s attention upon discovery, as required by Section 102.48(d)(2). Finally, to the extent that the General Counsel raised several potential issues regarding the Respondent’s ability to fulfill its obligations under the Order, the Board found such issues are best resolved at the compliance stage. While Acting Chairman Miscimarra adhered to the views he expressed in his separate opinion in the underlying decision, he agreed with his colleagues that the Respondent had not presented extraordinary circumstances warranting reconsideration of that decision. He disagreed with his colleagues that a motion to reopen the record must relate to proffered evidence that could have been presented at the hearing, but agreed that the Respondent’s motion was not filed promptly. Charge filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers of America, Local 104; The International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 160, Local Lodge 1350; and the International Union of Painters and Allied Trades, District Council 5. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Seven One Seven Parking Services of Michigan, Inc. d/b/a Hospital Parking Management (07-CA-147359) Detroit, MI, January 23, 2017. (Correction issued January 27, 2017) The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charge filed by Local 283, International Brotherhood of Teamsters (IBT). Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Premier Environmental Solutions, LLC (14-CA-177481) Kansas City, MO, January 23, 2017. (Correction issued January 27, 2017) The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charge filed by Teamsters Local Union No. 838, affiliated with International Brotherhood of Teamsters. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Bridgestone Americas Tire Operations, LLC (10-CA-182798) La Vergne, TN, January 23, 2017. (Correction issued January 27, 2017) The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International, AFL-CIO, CLC and its Local 1055L. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Transcendence Transit II, Inc., Transcendence Transit, Inc.; Patriarch Partners, LLC; Patriarch Partners III, LLC; Patriarch Partners Agency Services, LLC; Ark CLO 2000-1 Limited; Ark CLO 2000-1, LLC; Ark II CLO 2000-1Limited; Ark II CLO 2000-1; Ark Investment Partners II, L.P.; Ark Investment GP II, LLC; Lynn Tilton. (29-CA-182049) Brooklyn, NY, January 24, 2017. (Correction issued January 27, 2017) The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Acting Chairman Miscimarra would have granted the petition to revoke as to the request for employee rules, policies, handbooks, and manuals except for those documents that reasonably relate to the charge allegations. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Inventure Foods, Inc. (25-CA-180283) Bluffton, IN, January 25, 2017. (Correction issued January 27, 2017) The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. In considering the petition to revoke, the Board majority (Members Pearce and McFerran; Acting Chairman Miscimarra dissenting) evaluated the subpoena in light of the Region’s withdrawal of two paragraphs based on subsequent submissions by the Employer, and the Region’s willingness to limit the scope of the subpoena to the Employer’s location in Bluffton, Indiana. Contrary to the dissent, the majority found that the Region’s offer to limit the scope of the subpoena did not establish that the subpoena initially was overbroad. Dissenting, Acting Chairman Miscimarra would have granted the petition to revoke as to the request for employee handbooks, except for those handbook provisions that reasonably relate to the charge allegations regarding unlawful discipline and termination. Additionally, he dissented from the majority’s denial of the petition as to requests that encompass locations other than Bluffton, Indiana, stating his belief that it is more appropriate for the Board to grant a petition to revoke as to such requests, rather than to deny the petition to revoke based on a change that was communicated only after the petition to revoke is under consideration by the Board. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
The Gulfport Stevedoring Association-International Longshoremen’s Association Container Royalty Plan (15-CA-096939 and 15-CB-096934) Gulfport, MS, January 27, 2017. No exceptions having been filed to the December 9, 2016 supplemental decision of Administrative Law Judge Eric M. Fine’s granting of the General Counsel’s motion to dismiss the Respondent’s application for attorney’s fees, the Board dismissed the Respondent’s application. Charges filed by individuals.
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Appellate Court Decisions
800 River Road Operating Company, LLC d/b/a Woodcrest Health Care Center, Board Case No. 22-CA-097938 (reported at 362 NLRB No. 114) (D.C. Cir. decided January 24, 2017)
In a published opinion in this test-of-certification case, the court enforced the Board’s order issued against this operator of a rehabilitation and nursing facility in New Milford, New Jersey, for refusing to bargain after its non-professional employees voted 122 to 81 in a March 2012 election to be represented by 1199 SEIU United Healthcare Workers East.
In the underlying representation proceeding, the Employer filed objections to the election alleging that four of its supervisors interfered with employee free choice by soliciting union authorization cards or otherwise actively supporting the union. After a hearing was held, the Regional Director issued a report recommending that the objections be overruled because they lacked any factual basis. On review, the Board adopted that recommendation and also rejected the Employer’s contentions that it had not received a fair opportunity to prove its objections at the hearing. Specifically, the Board held that the Hearing Officer acted reasonably when, after hearing testimony from ten employer witnesses, none of whom had personal knowledge of the alleged objectionable conduct, he cut off the Employer’s “manifest fishing expedition.” Regarding the Hearing Officer’s additional ruling that he would not allow testimony from any more witnesses who did not have firsthand knowledge, and the Employer’s admission that it could not make offers of proof as to the six witnesses it sought to subpoena, the Board concluded that the Hearing Officer likely would not have heard their testimony even if he had issued the subpoenas. Accordingly, the Board held that, although the Hearing Officer erred by declining to issue the six subpoenas, the Employer was not prejudiced by the error. The Board also noted that, after that ruling, the Employer’s counsel walked out of the hearing and forwent taking testimony from its remaining five witnesses, all whom it alleged had specific, firsthand knowledge of the objectionable conduct.
The court agreed with the Board that the Hearing Officer did not abuse his discretion in rendering those rulings. Noting that it will uphold bargaining orders unless the Board abused its discretion and the abuse of discretion was prejudicial, the court stated that whether an error is prejudicial depends on a number of factors, including the closeness of the case, the centrality of the issue in question, and the effectiveness of any steps taken to mitigate the effects of the error. On this record, the court concluded that the Employer “cannot make this showing,” and that its “failure to meet this burden has less to do with the Hearing Officer’s rulings than its lawyer’s litigation choices.” The court explained that, given the Employer’s voluntary choice to walk out of the hearing, “we cannot separate the harm [the Employer] suffered (if any) as a result of the Hearing Officer’s denial from the prejudice caused by [it]’s decision to truncate the hearing.” Moreover, the court noted that a party “cannot simply create (or contribute to the creation of) prejudice and then plead reversible error,” but rather it must demonstrate the Board’s error was dispositive. Therefore, based on the Employer’s voluntary decision to leave the hearing, its failure to demonstrate the centrality of the witnesses to its case, and the potential for the Hearing Officer to exercise permissible discretion to revoke the subpoenas, the court held that the Employer had not shown the Hearing Officer’s denial of the six subpoenas “irreparably prejudiced” its case. The court also held that it was reasonable for the Hearing Officer to require a more substantial proffer to justify allowing additional witnesses to testify.
The court’s opinion is here.
Remington Lodging & Hospitality, LLC and Hospitality Staffing Solutions, LLC, Board Case No. 29-CA-093850 (reported at 363 NLRB No. 112) (5th Cir. decided January 27, 2017)
In a published opinion, the court enforced the Board’s order issued against this hotel operator that manages the Hyatt Regency Long Island in Hauppauge, New York, for unfair labor practices committed after its employees began organizing with Local 947, United Service Workers Union, International Union of Journeymen and Allied Trades.
The Board (Chairman Pearce and Members Hirozawa and Miscimarra) found that, during the initial months of organizing, the Employer violated Section 8(a)(1) of the Act on 12 separate occasions by threatening and interrogating employees, and held that the Employer’s anti-union literature included an unlawful threat to more strictly apply work rules if the Union won the election. The Board also found that the Employer violated Section 8(a)(3) and (1) of the Act by discharging its entire housekeeping staff, and (Member Miscimarra dissenting) subcontracting their work to an outside contractor because of its housekeepers’ union activities, and discharging an employee because it believed she had engaged in protected, concerted activity and would continue to do so, in violation of Section 8(a)(1). Finally, the Board unanimously found that the Employer later discriminatorily refused to rehire the housekeeping employees after the outside subcontractor terminated its subcontract.
On review, the Employer contested only two of the Board’s findings, both of which the court upheld. First, regarding its discharge of the entire housekeeping staff, and its subcontracting of their work, the court rejected the Employer’s challenges to the Board’s Wright Line analysis. Specifically, the court disagreed with the Employer’s contention that the General Counsel was required to produce evidence that the Employer’s discrimination “in fact caused or resulted in a discouragement of union membership.” Rather, the court, noting that such a requirement was inconsistent with its circuit precedent, explained that Section 8(a)(3) “makes it unlawful for an employer to discriminate against employees . . . for the purpose of discouraging membership in a labor organization” (court emphasis), and that “the General Counsel need not prove discouragement as a matter of fact.”
Second, the court noted that there was no dispute that the employee whom the Employer discharged on the belief that she was engaged in protected, concerted activity, was, in fact, not engaged in such activity at the time she was discharged. The court, however, disagreed with the Employer’s contention that without such a finding, the violation could not stand. The court explained that the NLRA protects both actual and “alleged union activities,” and thus, “proof of an unfair labor practice does not require proof of actual union activity; it is sufficient if the employer was motivated by suspected union activity in discharging the employee.” Finally, having found that substantial evidence supported the contested findings, and that the remaining uncontested violations were subject to summary enforcement, the court enforced the Board’s order in full.
The court’s opinion is here.
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Administrative Law Judge Decisions
Dish Network Corporation (16-CA-173719, et al.; JD-02-17) North Richland Hills, TX. Administrative Law Judge Robert A. Ringler issued his decision on January 23, 2017. Charges filed by Communication Workers of America, AFL-CIO.
Unite Here! Local 5 (20-CB-171212; JD(SF)-3-17) Honolulu, HI. Administrative Law Judge Jeffrey D. Wedekind issued his decision on January 27, 2017. Charge filed by Aqua-Aston Hospitality, LLC.
Dollar Thrifty Automotive Group (27-CA-173054; JD(SF)-02-17) Denver, CO. Administrative Law Judge Amita Baman Tracy issued her decision on January 27, 2017. Charge filed by Communication Workers of America Local No. 7777.
KHRG Employer, LLC d/b/a Hotel Burnham & Atwood Café (13-CA-162485; JD-03-17) Chicago, IL. Administrative Law Judge Christine E. Dibble issued her decision on January 27, 2017. Charge filed by Unite Here, Local 1, AFL-CIO.
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