Summary of NLRB Decisions for Week of June 19 - 23, 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
Deep Distributors of Greater NY d/b/a The Imperial Sales, Inc. (29-CA-147909, et al.; 365 NLRB No. 95) Bethpage, NY, June 20, 2017.
The Board adopted the Administrative Law Judge’s conclusions in this consolidated unfair labor practice and representation case. The Board found that the Respondent violated Section 8(a)(1) by threatening employees with termination and unspecified reprisals, interrogating employees, promulgating new work rules in response to Section 7 activity, telling employees it would be futile to select the Union as their collective-bargaining representative, threatening employees with deportation for testifying at the Board hearing, and giving employees the impression their protected activities were under surveillance (through conduct of a supervisor). As to the latter, Chairman Miscimarra concurred with his colleagues’ finding as to supervisory status, but disagreed that the supervisor created the impression that employees’ union activities were under surveillance. The Board also found that the Respondent violated Section 8(a)(3) and (1) by terminating eight employees, but, as to five of them, a Board majority (Chairman Miscimarra and Member McFerran) relied only on the judge’s finding that the Respondent discharged these employees because they refused to sign unlawfully promulgated rules and passed on the judge’s finding that they were discharged because they had engaged in union and other protected concerted activity. Member Pearce would have also adopted the judge’s finding that the Respondent discharged the five employees because they engaged in union and other protected concerted activity. In agreeing with his colleagues that the Respondent violated Section 8(a)(3) and (1) when it discharged the three employees for engaging in union activities, Chairman Miscimarra did not rely on the creation of an impression of surveillance as evidence of the Respondent’s anti-union animus. The Board overruled the election objections and remanded the case to the Regional Director to open and count the ballots of four challenged employees and issue a revised tally of ballots.
Additionally, the Board found that Respondent’s attorney engaged in a persistent pattern of aggravated misconduct during the course of the hearing and referred his alleged misconduct to the Investigating Officer pursuant to Section 102.117(e) of the Board’s Rules.
Finally, the Board ordered a broad cease and desist order, a notice-reading, and a publication order. Although Chairman Miscimarra agreed that a broad cease-and-desist order and a notice-reading remedy were warranted, he disagreed that a publication remedy was warranted.
Charges filed by an individual. Administrative Law Judge Steven Davis issued his decision on May 6, 2016. Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Parsec, Inc. (21-RC-183412) Commerce, CA, June 21, 2017. The Board denied the Union’s Request for Review of the Regional Director’s Supplemental Decision Overruling Objections and Certification of Representative as it raised no substantial issues warranting review. The Regional Director overruled most objections because the Employer failed to comply with the Board’s offer-of-proof requirements, and he overruled the remaining objections because the Employer’s conduct, as alleged by the Union, did not reasonably tend to interfere with the employees’ free and uncoerced choice in the election. Union – Truck Drivers, Chauffeurs, Warehousemen & Helpers Union, Local 707, National Production Workers Union. Chairman Miscimarra and Members Pearce and McFerran participated.
ADT, LLC (16-RM-123509) Carrollton, TX, June 22, 2017. The Board denied the Employer-Petitioner’s Motion for Reconsideration of the Board’s May 17, 2017 Decision on Review and Order, 365 NLRB No. 77 (2017), as it did not demonstrate extraordinary circumstances warranting reconsideration. Chairman Miscimarra agreed that the Employer-Petitioner’s motion should be denied but adhered to his dissenting position in the Decision on Review and Order. Employer-Petitioner – ADT, Inc. Union – Communications Workers of America, Local 6215. Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
Noel Canning, a division of The Noel Corporation (19-CA-145344 and 19-CA-169060) Yakima, WA, June 20, 2017. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel. The approved settlement specified actions the Respondent must take to comply with the Act, including rescinding policy changes concerning access to the facility by union representatives, the wearing of union hats, and other terms and conditions of employment, and removing from its files any reference to a verbal warning issued to an employee who was subpoenaed to testify in Board proceedings. Charges filed by Teamsters Local 760. Chairman Miscimarra and Members Pearce and McFerran participated.
UniQue Personnel Consultants, Inc. (25-CA-132398) Galesburg, IL, June 21, 2017. The Board denied UniQue Personnel Consultants, Inc.’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. Although Chairman Miscimarra dissented in the underlying proceeding, he joined his colleagues in denying the petition because the merits of the underlying case are not at issue in the compliance phase. Charge filed by an individual. Chairman Miscimarra and Members Pearce and McFerran participated.
UniQue Personnel Consultants, Inc. (25-CA-132398) Galesburg, IL, June 21, 2017. The Board denied Team Company d/b/a StaffQuick’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. Although Chairman Miscimarra dissented in the underlying proceeding, he joined his colleagues in denying the petition because the merits of the underlying case are not at issue in the compliance phase. Charge filed by an individual. Chairman Miscimarra and Members Pearce and McFerran participated.
Burgerville LLC (19-CA-182182 and 19-CA-182184) Vancouver, WA, June 21, 2017. No exceptions having been filed to the May 4, 2017 decision of Administrative Law Judge Amita Baman Tracy 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 Industrial Workers of the World.
New Vista Nursing and Rehabilitation Center (22-CA-179497) Newark, NJ, June 21, 2017. No exceptions having been filed to the May 4, 2017 decision of Administrative Law Judge Kenneth W. Chu’s 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 1199 SEIU United Healthcare Workers East.
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Appellate Court Decisions
Hanson Cold Storage Co. of Indiana d/b/a Hanson Logistics, Board No. 13-CA-178619 (reported at 364 NLRB No. 121) (7th Cir. decided June 20, 2017)
In a published opinion in this test-of-certification case, the Court denied enforcement and remanded the case for proceedings consistent with its opinion. In doing so, the Court rejected the Board’s reading of a voter’s irregular marks on a ballot that was determinative in a February 2016 election among the employees of this temperature-controlled logistics provider specializing in refrigerated warehousing and transportation services at its facility in Hobart, Indiana, to determine whether they wished to be represented by International Brotherhood of Teamsters, Local 142.
The tally of ballots for the election showed 18 votes for the Union, 17 votes against the Union, and 2 challenged ballots. The Employer challenged one ballot, arguing that the voter’s intent was unclear because, in addition to a large “X” in the “Yes” box, it contained some irregular marks and scribbles in, and extending just beyond, the “Yes” box. The Union challenged the other ballot, asserting that the employee was ineligible to vote due to an extended absence. The Acting Regional Director overruled the Employer’s challenge to the irregularly marked ballot based on the presumption that if marks are made in only one box, despite some irregularity, then a ballot will be counted, as articulated in Kaufman’s Bakery, Inc., 264 NLRB 225 (1982). The Acting Regional Director then counted the ballot as a vote for representation, found no need to pass on the other ballot challenge, and certified the Union. Thereafter, the Employer refused to bargain to seek review of the certification.
On review, the Court was not convinced that the presumption of Kaufman’s Bakery was applicable to the irregularly marked ballot, but held that the Board should have found the ballot void even under Kaufman’s Bakery. The Court stated that the ballot could “hardly be described as ‘clear,’ given that the scribbling covers much of the ‘X,’” and that “the ‘X’ is not ‘almost entirely contained within’ the ‘Yes’ box and much of the scribbling—the ‘irregular markings’ in this case—appears outside of that box,” quoting Kaufman’s Bakery, 264 NLRB at 225. Holding further that the Board should have considered the second challenged ballot, the Court denied enforcement and remanded for proceedings consistent with its opinion.
The Court’s opinion is here.
North Memorial Health Care, Board No. 18-CA-132107 (reported at 364 NLRB No. 61) (8th Cir. decided June 21, 2017)
In a published opinion, the Court granted enforcement, in all respects but one, of the Board’s order which issued against this operator of an acute-care hospital in Robbinsdale, Minnesota. The Board found that the Employer committed multiple unfair labor practices in events surrounding an informational picket held in June 2014 attended by 500 people outside the public entrance to the hospital for the purpose of addressing changes in staffing levels and scheduling. The picket was organized jointly by SEIU Healthcare Minnesota and the Minnesota Nurses Association which, in various units, represent 1,900 employees at the hospital.
The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that the Employer violated Section 8(a)(1) by prohibiting non-employee Union representatives from having non-disruptive union-related conversations in the hospital’s public cafeteria, physically interfering with the ability of those representatives to meet with and talk to employees in the cafeteria, ejecting a Union representative and threatening his arrest, coercively surveilling conversations between employees and Union representatives, and ejecting two Union representatives and banning them from the facility because of their union-related conversations. Also in violation of Section 8(a)(1), the Employer was found to have unlawfully prohibited an employee from posting union material on a bulletin board, interrogating that employee and threatening him with surveillance, and prohibiting an off-duty employee and two union representatives from wearing shirts with union insignia in non-patient care areas. The Board further found that the Employer violated Section 8(a)(3) by discriminatorily discharging an employee for his union activities, and Section 8(a)(5) by unilaterally imposing new restrictions on the activities of non-employee Union representatives in the cafeteria and banning two Union representatives from the building under those restrictions.
Before the Court, the Employer did not contest the bulk of those violations. On the contested issues, the Court (Circuit Judges Benton and Murphy, Circuit Judge Beam, dissenting) upheld—as supported by substantial evidence and consistent with law—the Board’s findings that the Employer unlawfully interfered with and surveilled union activities and conversations between employees and Union representatives in the public cafeteria, and prohibited an off-duty employee from wearing a shirt with union insignia in a non-patient care area of the hospital. However, with respect to the two Union representatives’ wearing of union insignia, the Court held that such protections only extend to employees, and reversed. In dissent, Judge Beam wrote to express his view that “the gravamen of this particular dispute . . . should have been, as a matter of law, limited to the scheduling, preparation for and execution” of the informational picketing," and that the Board’s decision exceeded that scope.
The Court’s opinion is here.
EYM King of Missouri, LLC d/b/a Burger King, Board Case No. 14-CA-148915 (reported at 364 NLRB No. 33) (8th Cir. decided June 21, 2017)
In an unpublished per curiam opinion, the Court enforced the Board’s order issued against this franchisee of several Burger King restaurants in the Kansas City, Missouri area for an unfair labor practice committed at 47th Street Restaurant after the Employer took over operations from a prior franchisee in 2015. The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that the Employer, at the time it assumed operations and hired most of the existing restaurant employees, violated Section 8(a)(3) and (1) by refusing to hire an employee who had 11 years of experience at Burger King and who was a prominent and outspoken supporter of the Workers’ Organizing Committee – Kansas City and a nationally known organizer for the “Fight for $15” campaign. On review, the Court agreed with the Board that the reasons advanced by the Employer for not hiring the employee were pretextual, and enforced the Board’s order in full.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Dura-Line Corporation, a subsidiary of Mexichem (09-CA-163289 et al.; JD-48-17) Middlesboro, KY. Administrative Law Judge Melissa M. Olivero issued her decision on June 20, 2017. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC and its Local 14300-12.
Four Seasons Healthcare & Wellness Center, LP, a California Limited Partnership (31-CA-169143; JD(SF)-24-17) North Hollywood, CA. Administrative Law Judge Ariel L. Sotolongo issued his decision on June 21, 2017. Charge filed by an individual.
LTTS Charter School, Inc. d/b/a Universal Academy (16-CA-170669; JD-49-17) Coppell, TX. Administrative Law Judge Robert A. Ringler issued his decision on June 21, 2017. Charge filed by an individual.
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