Summary of NLRB Decisions for Week of July 31 - August 4, 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
No Published Board Decisions Issued
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued
C Cases
No Unpublished C Cases Issued
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Appellate Court Decisions
Fred Meyer Stores, Inc., Board No. 36-CA-010555 (reported at 362 NLRB No. 82) (D.C. Cir. decided August 1, 2017)
In a published opinion, the Court granted the petition for review, denied enforcement, and remanded the case to the Board to reconsider portions of its decision. Under review was the Board’s order issued against this retail grocery business for unfair labor practices committed at its store in Hillsboro, Oregon, after its collective-bargaining agreements with the United Food and Commercial Workers, Local 555, expired and negotiations for successor contracts were underway. Specifically, the Board (then-Chairman Pearce and Member Hirozawa; Member Johnson, dissenting in part) found that the Employer violated Section 8(a)(1) and (5) by prohibiting two union representatives from speaking with unit employees on the store floor, in contravention of past practice and the contractual store-visitation clause. The Board also found that the Employer violated Section 8(a)(1) by causing three union representatives to be arrested and charged with criminal trespass, and by a store manager’s coercive statements about the Union.
The Court held, contrary to the Board, that the two union representatives who entered the store to speak with unit employees on the store floor had not adhered to the terms of the store-visitation clause because they failed to first notify management of their presence and thus had become trespassers. Noting, however, that the Employer had not made that argument to the Board, the Court nonetheless held that remand of the issue was necessary because the Board’s decision had ignored record evidence, misconstrued findings made by the Administrative Law Judge, and had failed to respond to key points raised by the dissenting member. Further, the Court held that the arrests and resulting trespass charges were not caused by the Employer’s actions, but rather by the union representatives’ refusal to obey the order of police officers to leave the premises. Finally, the Court held that the store manager’s statements about the Union were simply expressions of frustration directly responding to the events that had transpired, and were not threats to employees or even a statement of a forward-looking policy.
The Court’s opinion is here.
Oberthur Technologies of America Corp., Board Nos. 04-CA-086325, 04-CA-160992 (reported at 362 NLRB No. 198, 364 NLRB No. 59) (D.C. Cir. decided Aug. 4, 2017)
In a published opinion, the Court enforced the Board’s orders in these test-of-certification and related unfair-labor-practice cases that were consolidated for review. The Board’s orders issued against this manufacturer of credit, debit, and governmental identification cards at a plant in Exton, Pennsylvania, where a unit of its nonprofessional employees voted in a September 2012 election to be represented by Graphic Communications Conference, International Brotherhood of Teamsters, Local 14M.
In the underlying representation case, the parties entered into a stipulated election agreement in which they agreed that the Regional Director would conduct a conventional representation election. In the weeks before the election, a plant supervisor instructed employees not to talk about the Union while on the plant floor or during work time, and, shortly thereafter, the Employer announced that it would delay and withhold planned wage increases and bonuses during the pendency of the Union’s election petition. The Union filed charges alleging that those actions were unlawful.
As the election concluded, the Union challenged the ballots of two engineers on the basis that they were cast by “professional employees” within the meaning of Section 2(12), without the voting safeguards required by Sonotone Corp., 90 NLRB 1236 (1950) (holding that professional employees must vote in a separate voting group, using special ballots to determine, first, whether they wish to be included in a unit with nonprofessionals and, second, whether they want union representation). Given the final tally of 108 to 106 in the Union’s favor, the two challenged ballots were determinative of the election, and the Union filed election objections. Finding common issues between the unfair-labor-practice and representation cases, the Regional Director consolidated the cases for hearing before an Administrative Law Judge. After a hearing, the judge found the unfair labor practices as alleged, and concluded that the two engineers were professional employees because their work drew upon specialized technical or professional knowledge and required them to lead cooperative efforts, and that they both were salaried employees with academic degrees.
The Board (Members Hirozawa and Johnson; then-Member Miscimarra dissenting in part) issued a decision, order, and certification of representative (362 NLRB No. 198), adopting the judge’s unfair-labor-practice findings, and, in the representation case, affirming the judge’s recommendation to sustain the ballot challenges. Subsequently, the Employer refused to bargain in order to seek court review of the certification, and the Board (then-Chairman Pearce, then-Member Miscimarra, and Member Hirozawa) granted the General Counsel’s Motion for Summary Judgment (364 NLRB No. 59).
On review, the Court held that substantial evidence supported the Board’s unfair-labor-practice findings. Specifically, the Court noted that the Employer had restricted employee speech about unions, while concededly permitting employee discussion about non-union subjects, and had frozen two longstanding employee wage benefits, which would have been granted but for the Union’s election petition. On the representation-case issues, the Court upheld the Board’s determination to sustain the ballot challenges. The Court held that substantial evidence supported the finding that the two engineers were professional employees within the meaning of the Act, but that the parties’ stipulated election agreement had not provided for the necessary Sonotone election protections for those professional employees, whose ballots therefore were properly not opened or counted in the election.
The Court’s opinion is here.
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Administrative Law Judge Decisions
United States Postal Service (05-CA-180590; JD-61-17) Alexandria, VA. Administrative Law Judge Arthur J. Amchan issued his decision August 1, 2017. Charge filed by an individual.
Apex Linen Service, Inc. (28-CA-177062; JD(SF)-35-17) Las Vegas, NV. Administrative Law Judge Gerald M. Etchingham issued his decision on August 1, 2017. Charge filed by Culinary Workers Union Local 226 affiliated with Unite Here International Union.
ADT, LLC d/b/a ADT Security Services (03-CA-184936 and 03-CA-192545; JD-62-17) Albany, NY. Administrative Law Judge Michael A. Rosas issued his decision on August 4, 2017. Charges filed by International Brotherhood of Electrical Workers, Local Union 43.
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