Summary of NLRB Decisions for Week of January 5 - 9, 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
M.D. Miller Trucking & Topsoil, Inc. (13-CA-104166; 361 NLRB No. 141) Shorewood, IL, December 16, 2014.
The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to accept an employee’s current medical certification and requiring him to complete multiple medical certifications before he could return to work. Although the Board did not rely on the judge’s finding that this conduct constituted “effective termination,” there was no practical difference in the remedy, and therefore the Board did not modify the judge’s reinstatement language. In the absence of any argument from the Respondent, the Board adopted the judge’s finding that the Respondent also violated the Act by threatening employees with a loss of overtime and by engaging in direct dealing. The Board clarified that the direct dealing conduct violated Section 8(a)(5) of the Act. The Board also adopted the judge’s finding that statements by the Respondent’s owner/ president to the employee that his grievance would “get nowhere” violated Section 8(a)(1) of the Act under the following circumstances: the Respondent’s direct dealing was undermining the Union; the employee had just been unlawfully threatened with loss of overtime; and the employee had just been unlawfully discharged. In those circumstances, the Board found the Respondent’s statement to be unprotected by Section 8(c) of the Act and implied that filing a grievance would be futile. Member Johnson dissented on this finding, stating that the Respondent’s owner/president was offering her opinion of the merits of the grievance, a view she was entitled to hold and express under Section 8(c).
The Board further found that the judge properly barred the Respondent from presenting certain evidence as a sanction for the Respondent’s failure to comply with a subpoena duces tecum. Finally, the Board found it unnecessary to determine whether the judge erroneously refused to consider Federal Motor Carrier Safety Administration (FMCSA) regulations. The Board stated that substance of the regulations was irrelevant to the determination of the Respondent’s motivation. Member Johnson noted that, generally, an employer’s decision to send an employee for additional medical evaluation was not evidence of animus; however, in this case, he noted that the Respondent’s failure to reinstate the employee even after he was cleared by an FMCSA-certified doctor demonstrated the Respondent’s pretextual motivation.
Charge filed by General Teamsters Local Union No. 179, affiliated with International Brotherhood of Teamsters. Administrative Law Judge Ira Sandron issued his decision on April 9, 2014. Chairman Pearce and Members Johnson and Schiffer participated.
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Macy’s, Inc. (01-CA-137863; 361 NLRB No. 163) Saugus, MA, January 7, 2015.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case, finding 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. Therefore, the Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union since about August 12, 2014.
The Board rejected, as it did in the underlying proceeding, the Respondent’s argument that only a storewide unit is appropriate, rather than the certified unit of employees in the store’s cosmetics and fragrances department. In addition, the Board found that the Respondent’s allegations concerning postelection turnover and loss of majority support are not relevant to the Union’s certification based on a properly conducted Board election.
Charge filed by Local 1445 of the United Food and Commercial Workers Union. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Advanced Disposal Services East, Inc. (04-RC-123739) Norristown, PA, December 16, 2014. The Board adopted the hearing officer’s recommendation to overrule the Employer’s objections to an election held April 16 and 17, 2014. The Board agreed that conduct not witnessed by or disseminated to employees was not objectionable. The Board further agreed that the mere presence of police the morning of the election—without evidence of objectionable conduct—was insufficient to merit overturning the election results, and that, in this context, it was irrelevant who was responsible for calling the police. The Board also agreed that a heated argument the morning of the election between a Union supporter and an Employer supporter was not objectionable because other employees would view the incident as an argument between friends rather than a threat against employees not supporting the Union and because the evidence did not demonstrate that the argument was widely disseminated. Furthermore, to the extent the limited dissemination characterized the argument as a “fight,” the evidence was insufficient to sustain the objection because the argument was conveyed erroneously and out of context. See ManorCare of Kingston PA, LLC, 360 NLRB No. 93, slip op. at 1-2 (2014). Thus, the Board found that the evidence considered cumulatively or by individual incident did not support the Employer’s objections. Accordingly, the Board certified the Petitioner, International Brotherhood of Teamsters, Local 384, as the exclusive collective-bargaining representative of the unit employees. Member Miscimarra included a footnote agreeing with the decision but recommending the Board revise its standard set forth in Westwood Horizons Hotel, 270 NLRB 802, 803 (1984) for determining whether third-party threats warrant setting aside an election to remove the phrase “general atmosphere of fear and reprisal” because it improperly suggests that an election cannot be set aside unless the threats affected nearly all eligible voters, regardless of the closeness of the election results or seriousness of the misconduct. Members Miscimarra, Hirozawa and Schiffer participated.
Island Hospitality Management, Inc. d/b/a Hampton Inn (29-RC-130988, 29-CA-132140, and 29-CA-137710) Islandia, NY, January 5, 2015. No exceptions having been filed to the Regional Director’s disposition of objections filed by the Petitioner Union to an election held July 22, 2014, the Board remanded the proceeding to the Regional Director for further appropriate action consistent with his report, which overruled one objection and directed that another objection be merged with the consolidated complaint and notice of hearing in the unfair labor practice cases, to be heard before an administrative law judge. Petitioner—Brotherhood of Amalgamated Trades Local Union 514.
Petro Star, Inc. d/b/a North Pacific Fuel (19-RC-132630) Dutch Harbor/Unalaska, AK, January 6, 2015. No exceptions having been filed to the Regional Director’s report on the disposition of challenged ballots in an election held on August 14, 2014, the Board remanded the case for further appropriate action consistent with his report. Petitioner—Inlandboatman’s Union of the Pacific.
H and M International Transportation, Inc. (32-RC-136842) Oakland, CA, January 7, 2015. The Board denied the Petitioner’s Request for Review of the Regional Director’s administrative dismissal of its petition based on the existing collective-bargaining agreement between the Employer and the incumbent Union. Petitioner—Truck Drivers, Chauffeurs, Warehousemen and Helpers Union, Local 707. Incumbent Union—Transportation Communications Union, International Association of Machinists & Aerospace Workers, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Pre-Cast Specialties, Inc. (12-RC-139665) Pompano Beach, FL, January 7, 2015. Order granting request for special permission to appeal the Regional Director’s scheduling of a hearing on the Employer’s objections for January 7, 2015, and granting the appeal on the merits. The Board majority (Members Miscimarra and Johnson) found that the Regional Director abused her discretion by denying the Employer’s unopposed request to postpone the hearing based on a good cause showing of the unavailability of the counsel previously involved as representatives in this proceeding due to commitments predating the order scheduling the hearing, noting that this was a first-time postponement request and the Petitioner did not oppose postponement. The Board majority directed that the hearing be postponed until a date no earlier than January 16 but no later than January 23, 2015, and that no further postponement will be granted. The Board majority noted that absent mutual agreement by the parties on a hearing date, the Regional Director will set the date. Chairman Pearce would deny the special appeal on the merits, finding that the Employer did not show good cause for a postponement. Petitioner—Construction and Craft Workers Local Union No. 1652. Chairman Pearce and Members Miscimarra and Johnson participated.
C Cases
Selux Corporation (03-CA-123429) Highland, NY, January 5, 2015. No exceptions having been filed to the November 21, 2014 decision of Administrative Law Judge Lauren Esposito finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by Local 363, International Brotherhood of Electrical Workers, AFL-CIO.
United States Postal Service (28-CA-108760, et al.) Albuquerque, NM, January 6, 2015. No exceptions having been filed to the November 25, 2014 decision of Administrative Law Judge William L. Schmidt finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charges filed by National Association of Letter Carriers, Branches 1069, 989, 1509, and Sunshine Branch 504, affiliated with National Association of Letter Carriers, AFL-CIO.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
DTE Energy Company (07-CA-129514; JD-01-15) Detroit, MI. Administrative Law Judge Charles J. Muhl issued his decision on January 7, 2015. Charge filed by an individual.
Longy School of Music of Bard College (01-CA-127267 and 01-CA-130489; JD(NY)-01-15) Cambridge, MA. Administrative Law Judge Joel P. Biblowitz issued his decision on January 7, 2015. Charges filed by Longy Faculty Union, American Federation of Teachers Massachusetts, Local 6484.
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