Summary of NLRB Decisions for Week of July 28 - August 1, 2014
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
The Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman (02-RC-076954; 361 NLRB No. 11) New York, NY, July 28, 2014.
The full Board unanimously rejected the Regional Director’s decision ordering an election among the petitioned-for bargaining unit of all women’s shoe sales associates at a retail store. The Board found that the petitioned-for unit is not appropriate because, although the women’s shoes sales associates in the store’s separate departments of Salon Shoes and Contemporary Shoes are a readily identifiable group, they do not share a community of interest. Women’s shoes sales associates in Salon Shoes and Contemporary Shoes do not track any administrative or operational boundaries drawn by the Employer, do not share common supervision, do not interchange with one another on either a temporary or a permanent basis, do not have significant contact with one another, and do not share any specialized skills or training. Member Miscimarra agreed that employees within the petitioned-for unit do not share a sufficient community of interest to render the unit appropriate under the standards the Board has historically applied to the retail industry. Member Miscimarra stated that he would not apply Specialty Healthcare & Rehabiliation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), or the overwhelming community of interest standard to determine whether the petitioned-for unit must include additional employees. Instead, he would ask whether the interests of the group sought are sufficiently distinct from those of excluded employees to warrant establishment of a separate unit. Member Johnson concurred in finding that the petitioned-for unit is not appropriate for collective bargaining. He found no need to express his opinion on whether Macy’s, Inc., 361 NLRB No. 4 (2014) or Specialty Healthcare were properly decided. Petitioner Local 1102 Retail, Wholesale Department Store Union. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and Schiffer participated.
***
McKenzie-Williamette Regional Medical Center Associates, LLC d/b/a McKenzie-Williamette Medical Center (19-CA-077096 and 095797; 361 NLRB No. 7) Springfield, OR, July 29, 2014.
The Board reversed the Administrative Law Judge and found that the non-Board settlement between the Respondent and the Charging Party Union satisfied the standards set forth in Independent Stave Co., 287 NLRB 740 (1987). Although the General Counsel opposed the settlement and the settlement was signed late in the decisional process, the Board found that, on balance, the parties’ settlement adequately serves the policies underlying the Act, as well as the Board’s longstanding policy encouraging the amicable resolution of disputes. Charges filed by Service Employees International Union Local 49, CTW-CLC. Administrative Law Judge Gerald M. Etchingham issued his decision on June 3, 2013. Members Miscimarra, Hirozawa, and Schiffer participated.
***
Ralphs Grocery Company (21-CA-039867; 361 NLRB No. 9) Irvine, CA, July 31, 2014.
The Board agreed with the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by requiring an employee to submit to a drug and alcohol test, notwithstanding his request for Weingarten representation. A Board panel majority consisting of Chairman Pearce and Member Schiffer also agreed with the judge’s finding that the Respondent unlawfully suspended and discharged the employee for his refusal to take the test without representation. Accordingly, they found that because the reason for the employee’s suspension and discharge was inextricably linked to his assertion of Weingarten rights, the Judge’s make-whole remedy is appropriate. Member Johnson dissented from these latter two findings. Contrary to the majority, Member Johnson concluded that the employee was suspended and discharged because of the Respondent’s belief that he was intoxicated, not due to any hostility toward his request for union representation, and therefore, that the suspension and discharge were not unlawful and a make-whole remedy is not appropriate. Charge filed by United Food and Commercial Workers, Local 324. Administrative Law Judge Jeffrey D. Wedekind issued his decision on April 30, 2013. Chairman Pearce and Members Johnson and Schiffer participated.
***
Fresh & Easy Neighborhood Market (31-CA-077074 and 080734; 361 NLRB No. 8) El Segundo, CA, July 31, 2014.
A Board Panel majority consisting of Chairman Pearce and Member Schiffer reversed the Administrative Law Judge and found that the Respondent violated Section 8(a)(1) by maintaining a rule that required employees to keep employee information secure, and to use information fairly, lawfully, and only for the purpose for which it was obtained. The majority also found that the Respondent did not effectively repudiate the unlawful rule under Passavant Memorial Hospital, 237 NLRB 138 (1978). The Board, however, rejected the Union’s request for a broad order, finding that the Respondent did not have a demonstrated proclivity to violate the Act nor was the misconduct the type warranting a broad order. Member Johnson, dissenting, agreed with the Judge’s dismissal of the complaint, and found that the rule did not violate Section 8(a)(1). Contrary to the majority, Member Johnson agreed with the Judge that employees would not reasonably construe the rule to prohibit Section 7 activity. Charge filed by United Food and Commercial Workers International Union. Administrative Law Judge Gerald A. Wacknov issued his decision on March 22, 2013. Chairman Pearce and Members Johnson and Schiffer participated.
***
American Water Works Company, Inc. a/k/a American Water Works Service Company, Inc. (29-CA-030676; 361 NLRB No. 3) Voorhees, NJ, July 31, 2014.
The Board affirmed the Administrative Law Judge’s conclusion that Respondent violated Section 8(a)(5) and (1) by unilaterally implementing the terms of its last, best and final offer, which modified certain benefit plans. Although the Board agreed with the Judge that Respondent provided effective oral notice to the Federal Mediation and Conciliation Service (FMCS), it found that the Respondent failed to comply with the requirements of Section 8(d)(3) because the Respondent gave no notice to any state mediation agency about the parties’ bargaining dispute. The Board ordered the Respondent, among other things, to bargain with the Charging Party Union for a successor to the National Benefits Agreement, to rescind its unilateral changes to certain benefit plans, and to make employees whole for losses suffered as a result of those changes Member Johnson agreed with his colleagues that the Respondent’s actual notice to FMCS was sufficient, but separately wrote that the better practice would be to provide written notice, and that, based on the parties’ bargaining history, he agreed that the Charging Party was the apparent agent of the other unions in the bargaining consortium at the time Respondent initiated bargaining. Charge filed by Utility Workers Union of America, AFL–CIO, and its subsidiaries. Administrative Law Judge Steven Davis issued his decision on October 16, 2012. Chairman Pearce and Members Hirozawa and Johnson participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Your Public Radio Corporation (05-RC-130206) Baltimore, MD, July 31, 2014. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election. The Regional Director found that the two disputed employees are supervisors within the meaning of 2(11) of the Act. In denying review, the Board permitted the disputed employees to vote under challenge. Petitioner – Screen Actors Guild – American Federation of Television and Radio Artists, Washington – Mid Atlantic Local, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Dominion Nuclear Connecticut, Inc. (01-RC-106263) Waterford, Connecticut, August 1, 2014. The Regional Director directed an election among employees in a number of classifications employed at the Employer’s nuclear power plant. The Board denied the Petitioner’s Request for Review as not raising any issues warranting review, but granted the Employer’s Request for Review as to the Regional Director’s application of the Board’s public utility standard for unit determination. The Board denied the Employer’s request for review as to several disputed classifications. Petitioner— International Brotherhood of Electrical Workers, Local 457, AFL-CIO. Chairman Pearce and Members Miscimarra and Schiffer participated.
C Cases
Laborers International Union of North America, Local 1177 (Turner Industrial Maintenance) (15-CB-005974) Baton Rouge, LA, July 28, 2014. No exceptions having been filed to the Administrative Law Judge’s findings 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 an individual. Administrative Law Judge Keltner W. Locke issued his decision on October 24, 2012.
Service Employees International Union, United Healthcare Workers-West (Permanente Medical Group, Inc.) (20-CB-113164) Oakland, CA, July 29, 2014. No exceptions having been filed to the Administrative Law Judge’s findings 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. Administrative Law Judge Gerald A. Wacknov issued his decision on June 12, 2014.
Daycon Products Company, Inc. (05-CA-035687, et al.) Upper Marlboro, MD, July 29, 2014. No exceptions having been filed to the Administrative Law Judge’s Supplemental Decision regarding the amounts of backpay due the discriminatees, the Board adopted the judge’s determination of amounts of backpay due and ordered the Respondent to pay the amounts set forth in the Judge’s recommended Order. Charges filed by Drivers, Chauffeurs and Helpers Local Union No. 639, a/w International Brotherhood of Teamsters. Administrative Law Judge Eric M. Fine issued his supplemental decision on June 16, 2014.
Aerostar Development, Inc. d/b/a Pajaro Valley Golf Club (32-CA-111385) Watsonville, CA, July 29, 2014. No exceptions having been filed to the Administrative Law Judge’s findings 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 Unite Here Local 483. Administrative Law Judge William L. Schmidt issued his decision on June 12, 2014.
American Baptist Homes of the West d/b/a Piedmont Gardens (32-CA-078124 and 080340) Oakland, CA, July 31, 2014. The Board denied the Charging Party Union’s motion for reconsideration of the Board’s May 12, 2014 Decision and Order finding that the Respondent violated Section 8(a)(1) of the Act by posting a sign in an employee break room stating that union meetings were prohibited there, by maintaining a policy prohibiting employees from remaining on its premises after their shift unless previously authorized by a supervisor, and by enforcing that policy against two employees who sought access to the Respondent’s premises to engage in protected activity. In its motion, the Charging Party requested, for the first time, several additional remedies, including an order requiring the Respondent to post a notice in its employee break room and to provide employees a copy of the Board’s decision upon request. The Charging Party also urged the Board to offer a toll-free telephone number for employees to call when contacting the Executive Secretary to request hard copies of Board decisions. The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration under Sec. 102.48(d)(1) of the Board’s Rules and Regulations. Charges filed by Service Employees International Union, United Healthcare Workers-West. Members Miscimarra, Johnson, and Schiffer participated.
Durham School Services, L.P. (32-CA-077078 and 32-RC-066466) Campbell, CA, July 31, 2014. The full Board denied the Charging Party Union’s motion for reconsideration of the remedies in the Board’s Decision and Order reported at 360 NLRB No. 85 (2014). The Board found that the Charging Party did not identify any material error or demonstrate extraordinary circumstances warranting reconsideration. Charges filed by Freight, Construction and General Drivers, Warehousemen & Helpers – Teamsters Union Local No. 287, affiliated with International Brotherhood of Teamsters, Change To Win. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and Schiffer participated.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Oregon School Employees Association Chapter 204, American Federation of Teachers, Local 6732 (First Student, Inc.) (19-CB-106045; JD(SF)-39-14) Gresham, OR. Administrative Law Judge Eleanor Laws issued her decision on July 28, 2014. Charge filed by an individual.
International Brotherhood of Electrical Workers, Local Union 357, AFL-CIO (Desert Sun Enterprises Limited d/b/a Convention Technical Services) (28-CC-115255; JD(SF)-38-14) Las Vegas, NV. Administrative Law Judge Gerald A. Wacknov issued his decision on July 28, 2014. Charge filed by Desert Sun Enterprises Limited d/b/a Convention Technical Services.
The Conklin Group LLC, d/b/a Massage Envy (15-CA-117947 and 119538; JD-44-14) Panama City, FL. Administrative Law Judge Michael A. Rosas issued his decision on July 28, 2014. Charges filed by individuals.
Hyatt Corporation d/b/a Hyatt Regency Scottsdale (28-CA-112474; JD(SF)-29-14) Scottsdale, AZ. Administrative Law Judge Dickie Montemayor issued his decision on July 31, 2014. Charge filed by an individual.
The Boeing Company (19-CA-093656; JD(SF)-36-14) Seattle, WA. Administrative Law Judge Dickie Montemayor issued his decision on July 31, 2014. Charge filed by Society of Professional Engineering Employees in Aerospace, affiliated with International Federation of Professional & Technical Engineers, Local 2001.
Commercial Air, Inc. (25-CA-092821, et al.; JD-47-14) Lebanon, IN. Administrative Law Judge Paul Bogas issued his decision on August 1, 2014. Charges filed by Indiana State Pipe Trades Association and U.A. Local 440, AFL-CIO.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.