Summary of NLRB Decisions for Week of July 24 - 28, 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
Garda CL Atlantic, Inc. (22-CA-196340; 365 NLRB No. 108) Edison, NJ, July 24, 2017.
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. The Board also found without merit the Respondent’s affirmative defenses, which asserted that the complaint is barred based on the doctrines of laches, waiver, and/or unclean hands; that, to the extent the complaint fails to give the Respondent fair and adequate notice of the underlying charges, it denies the Respondent its right to due process under the U.S. Constitution, its right to notice of the charges under Section 10, and its right to notice and a fair hearing under the Board’s Rules and Regulations; and that the complaint is invalid to the extent that it fails to state a claim upon which relief may be granted.
Charge filed by United Federation of Special Police and Security Officers, Inc. Chairman Miscimarra and Members Pearce and McFerran participated.
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Premier Environmental Solutions, LLC (14-CA-191378; 365 NLRB No. 111) Kansas City, MO, July 25, 2017.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing to furnish the Union with requested information that is relevant and necessary to the Union’s performance of its functions as the exclusive collective-bargaining representative of the Respondent’s unit employees, and ordered the Respondent to furnish the requested information in a timely manner. Chairman Miscimarra noted that he adheres to his views regarding the duty to disclose witness statements, but, in the absence of any response to the complaint or the Board’s Notice to Show Cause, he concurred in finding that the Respondent unlawfully failed to provide the requested information regarding witness statements.
Charge filed by Teamsters Local Union No. 838, affiliated with International Brotherhood of Teamsters. Chairman Miscimarra and Members Pearce and McFerran participated.
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Mek Arden, LLC d/b/a Arden Post Acute Rehab (20-CA-156352, et al.; 365 NLRB No. 109) Sacramento, CA, July 25, 2017.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by instructing employees not to visit other areas of the facility, directing employees not to wear union scrubs or logos, directing employees to wear attire associated with the Respondent’s campaign, creating the impression that the employees’ union or protected activities were under surveillance, and prohibiting the posting of union literature and removing such postings. The Board majority (Members Pearce and McFerran), reversing the judge, found that the Respondent also violated Section 8(a)(1) by soliciting employee grievances and impliedly promising to remedy them. The Board adopted the judge’s recommendations to sustain the Union’s objections and conduct a second election.
Charges filed by Service Employees International Union, United Long Term Care Workers. Administrative Law Judge Ariel L. Sotolongo issued his decision on May 27, 2016. Chairman Miscimarra and Members Pearce and McFerran participated.
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Butler Medical Transport, LLC (05-CA-094981 et al.; 365 NLRB No. 112) Owings Mills, MD, July 27, 2017.
The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting in part) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee because his Facebook posts constituted protected concerted activity. The Board majority (Members Pearce and McFerran) further found that the Respondent violated Section 8(a)(1) by discharging the employee pursuant to its unlawful social media policy. Dissenting, Chairman Miscimarra would have found that the employee did not engage in protected concerted activity and that the Board’s decisions in Double Eagle Hotel & Casino, 341 NLRB 112 (2004), and Continental Group, Inc., 357 NLRB 409 (2011), were wrongly decided and should be overruled.
The Board unanimously adopted the judge’s conclusion that the Respondent did not violate Section 8(a)(1) by discharging another employee because his Facebook post was unprotected. The Board majority further found that the Respondent did not violate Section 8(a)(1) by discharging the employee pursuant to its unlawful social media policy; again, Chairman Miscimarra did not rely on Double Eagle and Continental Group in concurring that the discharge was lawful.
Charges filed by individuals. Administrative Law Judge Arthur J. Amchan issued his decision on September 4, 2013. Chairman Miscimarra and Members Pearce and McFerran participated.
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Roy Spa, LLC (19-CA-083329; 365 NLRB No. 114) Great Falls, MT, July 27, 2017.
The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) adopted the Administrative Law Judge’s conclusion that the General Counsel’s position on the merits was substantially justified, and therefore adopted his order denying Respondent’s application for an award under the Equal Access to Justice Act . Chairman Miscimarra dissented based on his view, in the Board’s previous consideration of this case (363 NLRB No. 183), that the judge abused his discretion by accepting the General Counsel’s untimely filed motion to dismiss.
Charge filed by International Brotherhood of Teamsters, Local 2. Chief Administrative Law Judge Robert A. Giannasi issued his supplemental decision on July 12, 2016. Chairman Miscimarra and Members Pearce and McFerran participated.
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UPS Ground Freight, Inc. (04-RC-165805; 365 NLRB No. 113) Kutztown, PA, July 27, 2017.
The Board granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election and Supplemental Decision on Objections to Election and Certification of Representative as to the supervisory status of a dispatcher. On review, the Board found that the dispatcher was not a statutory supervisor. In so finding, the Board agreed with the Acting Regional Director that the Employer had failed to establish either that the individual was a statutory supervisor or that he engaged in conduct that would be objectionable if he were a supervisor. The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s request for review in all other respects as it raised no substantial issues warranting review. Chairman Miscimarra would have also granted review with respect to procedural rulings made by the Hearing Officer and/or the Acting Regional Director that were based on the Election Rule. In his view, the Employer’s Request for Review raised substantial issues warranting review to determine whether the disputed rulings were unfair, arbitrary, contrary to the Act, and a denial of due process. The Chairman concurred with his colleagues’ disposition of the case in all other respects.
Petitioner – Teamsters Local 773. Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
CTS Construction, Inc. (09-RD-187368) Cincinnati, OH, July 26, 2017. Erratum to May 31, 2017 Board Order. Erratum
C Cases
Apex Linen Service, Inc. (28-CA-193128 and 28-CA-193231) Las Vegas, NV, July 25, 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. Charges filed by International Union of Operating Engineers Local 501, AFL-CIO. Chairman Miscimarra and Members Pearce and McFerran participated.
SEIU, United Healthcare Workers-West (Cedars Sinai Medical Center) (31-CB-188979) West Hollywood, CA, July 25, 2017. The Board denied the Union’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 Union failed to establish any other legal basis for revoking the subpoena. Charge filed by an individual. Chairman Miscimarra and Members Pearce and McFerran participated.
Elite Ambulance, Inc. (31-CA-122353, et al.) Los Angeles, CA, July 25, 2017. The Board denied the Employer’s Petition to Revoke the subpoenas duces tecum addressed to a bank, finding that the Employer lacked standing to file the petition because it failed to substantiate its assertion that it had any personal right or privilege with respect to the bank records sought, which were the personal bank records of non-party individuals and not the corporate records of the Employer. In addition, the Board found that, even if the Employer had standing, its petition would be denied as the subpoenas sought information relevant to the matter under investigation, described with sufficient particularity the evidence sought, and there was no other legal basis for revoking the subpoenas. Charges filed by International Association of EMTs and Paramedics (IAEP)/NAGE/SEIU Local 5000. Chairman Miscimarra and Members Pearce and McFerran participated.
Local 876, International Brotherhood of Electrical Workers (IBEW), AFL-CIO (Newkirk Electric Associates, Inc.) (07-CD-182456) Muskegon, MI, July 27, 2017. The Board denied Intervenor Local 324, International Union of Operating Engineers, AFL–CIO’s Motion for Reconsideration of the Board’s Decision and Order reported at 365 NLRB No. 81 (2017), awarding the work in dispute in a Section 10(k) jurisdictional dispute to the employees represented by Charged Party, Local 876, International Brotherhood of Electrical Workers (IBEW), AFL-CIO. Charge filed by Newkirk Electric Associates, Inc. Chairman Miscimarra and Members Pearce and McFerran participated.
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Appellate Court Decisions
T-Mobile USA, Inc., and MetroPCS Communications, Inc., Board Case No. 02-CA-115949 (reported at 363 NLRB No. 171) (5th Cir. decided July 25, 2017)
In a published opinion, the Court enforced, in part, the Board’s order issued against these two companies that provide telecommunications services and operate retail stores throughout the United States and Puerto Rico, for maintaining, collectively at all their locations, 15 work rules in violation of Section 8(a)(1).
After decision by the Administrative Law Judge on a stipulated record, no exceptions were filed to the judge’s findings that 11 of the rules were unlawful, which included the 4 maintained by MetroPCS Communications. On review, the Board (then-Chairman Pearce and Members Hirozawa and McFerran) adopted those 11 recommended findings in the absence of exceptions. The Board found the 4 contested rules were unlawful under the framework of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), because they would reasonably be read by employees as prohibiting Section 7 activity.
Specifically, the Board found that the “Workplace Conduct” policy—that employees must “behave in a professional manner,” and “maintain a positive work environment by communicating in a manner that is conducive to effective working relationships”—and the “Commitment to Integrity” policy—that employees must not “argu[e] . . . with co-workers, subordinates or supervisors,” “fail[] to treat others with respect,” or “fail[] to demonstrate appropriate teamwork”—contained broad, ambiguous language that employees would reasonably construe as prohibiting protected communications. The Board found that the “Recording in the Workplace” rule contained an expansive ban on recordings that could be read as restricting recordings protected by Section 7. Finally, the Board found that the non-disclosure provision of the “Acceptable-Use Policy” would be read by employees as restricting the protected disclosure of employee-related information, such as wages and terms and conditions of employment, to coworkers and outside parties.
The Court summarily enforced the Board’s findings that the 11 uncontested rules were unlawful. On the contested issues, however, the Court upheld only the Board’s finding that the “Recording in the Workplace” rule was unlawful. The Court explained that T-Mobile’s ban on all recordings was, “by its own terms alone, stated so broadly that a reasonable employee, generally aware of employee rights, would interpret it to discourage protected concerted activity.” As to the “Workplace Conduct” and “Commitment to Integrity” policies, the Court held that the Board had failed to read the rules in context, from which the implication is that the rules are referring only to employee work conduct or “a common sense civility guideline.” Finally, with regard to the “Acceptable-Use Policy,” the Court again stated that the Board failed to consider the rule’s context, and that the nondisclosure provision here does not define non-public information in a way that would lead a reasonable employee to believe that it includes protected wage and benefit information.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Mike-Sell’s Potato Chip Company (09-CA-184215; JD-55-17) Dayton, OH. Administrative Law Judge Andrew S. Gollin issued his decision on July 25, 2017. Charge filed by International Brotherhood of Teamsters (IBT), General Truck Drivers, Warehousemen, Helpers, Sales, and Service, and Casino Employees, Teamsters Local Union No. 957.
Apollo Health, Inc. (13-CA-189486; JD-53-17) Chicago, IL. Administrative Law Judge Arthur J. Amchan issued his decision on July 26, 2017. Charge filed by an individual.
Altura Communication Solutions, LLC (13-CA-174605; JD-60-17) Downers Grove, IL. Administrative Law Judge David I. Goldman issued his decision on July 27, 2017. Charge filed by International Brotherhood of Electrical Workers, Local 21.
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